The Internal Revenue Service has published final regulations on how to treat the sale or exchange of a musical composition or of the copyright in a musical work.

The final regulation, published last Friday according to the Journal of Accountancy, provides the time and manner rules for electing to treat the sale or exchange of a musical composition or a copyright in a musical work created by the taxpayer (or received by the taxpayer from the composition or work’s creator in a transferred basis transaction) as the sale or exchange of a capital asset. Previously the income from the sale of a self-created musical composition needed to be treated as ordinary income. Under the new regulations, the income can be taxed at lower capital gains tax rates.

The regulation reflects changes to the law made by the Tax Increase Prevention and Reconciliation Act of 2005 and the Tax Relief and Health Care Act of 2006. The regulation affects taxpayers who elect to treat gain or loss from such a sale or exchange as capital gain or loss.

Section 1221(a) of the Tax Code generally provides that capital assets include all property held by a taxpayer with certain specified exclusions.

Section 1221(a)(1) excludes from the definition of a capital asset inventory property or property held by a taxpayer primarily for sale to customers in the ordinary course of the taxpayer’s trade or business. Section 1221(a)(3) excludes from the definition of a capital asset certain property—a copyright; a literary, musical, or artistic composition; a letter or memorandum; or similar property—held by a taxpayer whose personal efforts created the property (or held by a taxpayer whose basis in the property is determined by reference to the basis of such property in the hands of the taxpayer whose personal efforts created the property).

Section 1221(b)(3) of the Code, added by Section 204 of the Tax Increase Prevention and Reconciliation Act of 2005, and amended by Section 412 of the Tax Relief and Health Care Act of 2006, provides that, at the election of a taxpayer, the exclusions from capital asset status will not apply to a musical composition or a copyright in a musical work sold or exchanged by a taxpayer.

Thus, if a taxpayer who owns a musical composition or copyright in a musical work created by the taxpayer (or transferred to the taxpayer by the composition or work’s creator in a transferred basis transaction) elects the application of this provision, gain or loss from the sale or exchange of the musical composition or copyright is treated as a capital gain or loss.

The regulation applies to elections under Section 1221(b)(3) in taxable years beginning after May 17, 2006.

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