Tax 2.61 Note
Example: Corporation A owns stock representing 40% of the voting power of Corporation B and has a 50% interest in Partnership C. Partnership C owns stock representing 30% of the voting power of Corporation B. By operation of section
318 of the Internal Revenue Code, Corporation A constructively owns stock representing 55% (= 40% + (50% x 30%)) of the voting power of Corporation B.
Tax 2.61(3)(a)1.
1. In applying section
318(a)(2) of the Internal Revenue Code, if a partnership, estate, trust, or corporation owns, directly or indirectly, more than 50 percent of an entity, it shall be considered to own all of the stock or other ownership or control interests owned by that entity.
Tax 2.61 Note
Example: Corporation D owns stock representing 10% of the voting power of Corporation E and has a 75% interest in Partnership F. Partnership F owns stock representing 45% of the voting power of Corporation E. Corporation D is considered to constructively own stock representing 55% (= 10% + 45%) of the voting power of Corporation E. This is because Corporation D owns more than 50% of Partnership F and is therefore considered to own all of the Corporation E stock owned by Partnership F.
Tax 2.61(3)(a)2.
2. If a person has an option to acquire stock or other ownership interests in an entity, the stock or ownership interests are not considered owned by the person unless the department determines it to be necessary to prevent tax avoidance.
Tax 2.61(3)(b)
(b) Common owner or owners. The common owner or owners need not be combined group members, and the common owner or owners may be persons other than corporations.
Tax 2.61(3)(c)
(c) Multiple unitary businesses. A commonly controlled group may be engaged in one or more unitary businesses. Therefore, a commonly controlled group may contain more than one combined group.
Tax 2.61(3)(d)1.1. A shareholder has ownership or control of stock representing more than 50 percent of the voting power of a corporation only if the shareholder has ownership or control of more than 50 percent of the total combined voting power of all classes of stock of the corporation entitled to vote.
Tax 2.61(3)(d)2.
2. A group of two or more corporations need not be commonly owned to be commonly controlled. As provided in s.
71.255 (1) (c) 3., Stats., a group of corporations may be a commonly controlled group if stock representing more than 50 percent of the voting power in each corporation are interests that cannot be separately transferred. If a group of 2 or more corporations would be considered stapled entities under section
269B of the Internal Revenue Code and the regulations that interpret it, without regard to whether the corporations are foreign or domestic, the corporations shall be considered part of a commonly controlled group.
Tax 2.61(3)(d)3.
3. The mere ownership of stock entitled to vote does not by itself mean that the shareholder owning the stock has the voting power of the stock. If there is any agreement, whether express or implied, that any shareholder will not vote its stock or will vote it only in a specified manner, or that shareholders owning stock having 50 percent or less of the total combined voting power will exercise voting power normally possessed by a majority of stockholders, the department may presume that the nominal ownership of the voting power is not determinative of which shareholders actually hold the voting power and may disregard the nominal ownership. This presumption may be rebutted by the taxpayer.
Tax 2.61(3)(d)4.
4. If a shareholder owns shares of stock of a corporation which has another class of stock outstanding, the voting power of that other class of stock will be deemed owned by any person or persons on whose behalf it is exercised if the facts indicate that the shareholders of that other class of stock do not exercise their voting rights independently or fail to exercise their voting rights. If the voting power in that other class of stock is not exercised and the percentage of voting power of that class of stock is substantially greater than its proportionate share of the corporate earnings, the department may presume that the principal purpose of the arrangement was avoid the inclusion of the corporation in the commonly controlled group and may disregard the voting power of the class of stock that was not exercised. This presumption may be rebutted by the taxpayer.
Tax 2.61(4)
(4)
Water's edge. This subsection describes how a corporation that is otherwise a combined group member must determine and report items that are not subject to combination due to the extent of the corporation's activities outside the United States, as provided in s.
71.255 (2), Stats. In general, the corporation must consider whether it is a foreign corporation or domestic corporation, whether it qualifies as an “80/20 corporation," and whether its income is from foreign sources or U.S. sources. The following rules apply:
Tax 2.61(4)(a)
(a) Qualifying as a “foreign corporation". For purposes of the water's edge rules in pars.
(d) and
(e), a “foreign corporation" means any corporation that is not incorporated, organized, or created in the United States or under the laws of the United States or any state. For purposes of determining whether a corporation is a foreign corporation or a domestic corporation, the following rules apply:
Tax 2.61(4)(a)1.
1. If, for federal purposes, a corporation is treated as created or organized under the laws of both the U.S. and a foreign jurisdiction, it is a domestic corporation.
Tax 2.61(4)(a)2.
2. A foreign corporation that domesticates and is treated by a state as organized under the laws of that state is a domestic corporation.
Tax 2.61(4)(a)3.
3. If an entity is organized in a foreign country and is recognized in that country as a corporation, but the entity's owner elects to treat that entity as a branch for U.S. taxation purposes or the entity is a disregarded entity, the entity shall be treated as a branch of its owner.
Tax 2.61(4)(b)1.1. For purposes of the water's edge rules in pars.
(d) and
(e), a corporation is an “80/20 corporation" if 80 percent or more of its worldwide gross income during the testing period is “active foreign business income" as defined in subchapter N of the Internal Revenue Code.
Tax 2.61(4)(b)2.
2. The testing period for purposes of subd.
1. is the tested corporation's taxable year that would be included in the combined group's taxable year, as determined by s.
71.255 (8), Stats. If the tested corporation was not otherwise eligible to be a combined group member for any part of that taxable year (for example, the corporation did not satisfy the conditions in sub.
(2) (a) 1. or
2.), the testing period is the portion of that taxable year in which the corporation was otherwise eligible to be a member.
Tax 2.61(4)(b)3.
3. An 80/20 corporation may be either a foreign corporation or a domestic corporation.
Tax 2.61(4)(b)4.
4. For purposes of this paragraph, a corporation's active foreign business income includes gross income attributed from subsidiary corporations as provided in subchapter N of the Internal Revenue Code, but only to the extent the gross income of the subsidiary corporations is derived from the combined group's unitary business.
Tax 2.61(4)(b)5.
5. A disregarded entity's active foreign business income and worldwide gross income shall be combined with those of its owner for purposes of applying the test in subd.
1. Tax 2.61(4)(c)1.1. For purposes of the water's edge rules in pars.
(d) and
(e), income is foreign source income if it is from sources without the United States as provided in sections
861 through
865 of the Internal Revenue Code, except as provided in subd.
2. “United States" has the same meaning as in sections
861 through
865 of the Internal Revenue Code.
Tax 2.61(4)(c)2.
2. For a foreign corporation, foreign source income does not include income that is subject to United States taxation because it is effectively connected with the conduct of a trade or business within the United States under sections
861 through
865 of the Internal Revenue Code, even if the income is otherwise from sources without the United States. However, this subdivision shall be disregarded in applying the test under par.
(b) 1. Tax 2.61(4)(c)3.
3. All income that is not foreign source income is U.S. source income.
Tax 2.61(4)(d)1.1. A domestic corporation that is not an 80/20 corporation shall include in the unitary combination all net income or loss from the unitary business regardless of whether it is foreign source income or U.S. source income, and any apportionment factors related to that net income or loss.
Tax 2.61(4)(d)2.
2. A domestic corporation that is an 80/20 corporation is a consolidated foreign operating corporation. A consolidated foreign operating corporation shall include in the unitary combination its net income or loss from the unitary business to the extent it is both U.S. source income and is income described in s.
71.255 (2) (d), Stats., and any apportionment factors related to that net income or loss. The consolidated foreign operating corporation may not include in the unitary combination any foreign source income, income not described in s.
71.255 (2) (d), Stats., expenses or deductions related to the excluded income as provided in sub.
(6) (h), or apportionment factors related to the excluded income. However, the excluded income may still be taxable as described in par.
(h). The income described in s.
71.255 (2) (d), Stats., is explained further in par.
(f).
Tax 2.61(4)(e)1.1. A foreign corporation that is not an 80/20 corporation shall include in the unitary combination its net income or loss from the unitary business to the extent it is U.S. source income, and any apportionment factors related to that net income or loss. The corporation may not include in the unitary combination any foreign source income, expenses or deductions related to the excluded income as provided in sub.
(6) (h), or apportionment factors related to the excluded income. However, this foreign source income may still be taxable as described in par.
(h).
Tax 2.61(4)(e)2.
2. Except as provided in subd.
3., a foreign corporation that is an 80/20 corporation may not include any income, expenses, or apportionment factors in the unitary combination, but may still have taxable income as described in par.
(h).
Tax 2.61(4)(e)3.
3. A foreign corporation that is an 80/20 corporation but elects to be included in a federal consolidated return for the taxable year shall be treated as if it is a domestic corporation, in which case the rules of par.
(d) 2. apply to the corporation. This subdivision applies regardless of whether the combined group has made the controlled group election.
Tax 2.61(4)(f)
(f) Includable income of consolidated foreign operating corporations. The net income that a consolidated foreign operating corporation shall include in a unitary combination, as described in par.
(d) 2., includes the items described in subds.
1. to
5. to the extent the income is U.S. source income and from the unitary business, regardless of whether earned or incurred directly by that corporation or by a pass-through entity in which the corporation has an interest:
Tax 2.61(4)(f)1.
1. Interest income or income generated from intangible property, whether or not the income is derived from persons or entities related to the consolidated foreign operating corporation. Income generated from intangible property includes income related to the direct or indirect acquisition, use, maintenance, management, ownership, sale, exchange, or any other disposition of intangible property; income from factoring transactions or discounting transactions; royalty, patent, technical, and copyright fees; and licensing fees. For purposes of this subdivision, “intangible property" has the meaning given in s.
71.22 (3h), Stats.
Tax 2.61(4)(f)2.
2. Income derived from interest expenses or intangible expenses that were paid, accrued, or incurred by combined group members to or for the benefit of the consolidated foreign operating corporation; to the extent those amounts were not already included under subd.
1. For purposes of this subdivision, “interest expenses" has the meaning given in s.
71.22 (3m), Stats., and “intangible expenses" has the meaning given in s.
71.22 (3g), Stats.
Tax 2.61(4)(f)3.
3. Dividend income received from a real estate investment trust that is not a qualified real estate investment trust as defined in s.
71.22 (9ad), Stats.
Tax 2.61(4)(f)4.
4. Gains or losses derived from the sale or lease of real or personal property located in the United States.
Tax 2.61(4)(f)5.
5. Expenses or deductions related to the income, gains, and losses described in subds.
1. to
4., determined in the manner provided in sub.
(6) (h).
Tax 2.61(4)(g)
(g) Applicability of federal treaties. If a corporation's income is not included in gross income for federal income tax purposes under the provisions of a federal treaty, the income is not included in gross income for Wisconsin purposes and shall not be included in combined unitary income.
Tax 2.61(4)(h)
(h) Taxation of income not subject to combination under water's edge. Any income, expenses, and apportionment factors that are excluded from the unitary combination under pars.
(d) and
(e) shall be taken into account by the separate corporation that earned the income. The following rules apply to determining and reporting Wisconsin net income or loss not subject to combination under the water's edge rules:
Tax 2.61(4)(h)1.
1. The net income or loss is presumed to be from a unitary business and therefore apportionable.
Tax 2.61(4)(h)2.
2. The corporation's nexus depends on whether the corporation is a “combined group member" as defined in s.
Tax 2.60 (2) (b). If the corporation is a combined group member, the provisions of subd.
3. apply. If the corporation is not a combined group member, the provisions of subd.
4. apply.
Tax 2.61(4)(h)3.
3. Under s.
71.255 (5) (a), Stats., a corporation that is a combined group member is doing business in this state if any member of the combined group is doing business in this state relating to the unitary business. If the corporation is a combined group member because of the controlled group election, that corporation is doing business in this state if any member of the combined group is doing business in this state. In either case, an apportioned share of the corporation's net income or loss that is not subject to combination under the water's edge rules may be taxed by Wisconsin. “Doing business in this state" is defined in s.
71.22 (1r), Stats., and further explained in s.
Tax 2.82.
Tax 2.61(4)(h)4.
4. If the corporation is not a combined group member, s.
71.255 (5) (a), Stats., does not apply. Instead, the corporation is doing business in this state if, when considered as a separate entity, it is “doing business in this state" as defined in s.
71.22 (1r), Stats., and further explained in s.
Tax 2.82. For example, and without limitation, the corporation may have nexus in this state if any agent of the corporation, including a member of the combined group, acts on the corporation's behalf in this state in a manner that would create nexus under s.
71.22 (1r), Stats., s.
Tax 2.82, or otherwise.
Tax 2.61(4)(h)5.
5. The provisions of ss.
71.26 (2) (a) 7. and
71.45 (2) (a) 16., Stats., requiring an addition modification for interest expenses, rent expenses, intangible expenses, and management fees paid, accrued, or incurred to a related entity, apply to any amounts not subject to combination which were paid, accrued, or incurred by the corporation to any related entity, even if the related entity was a combined group member.
Tax 2.61(4)(h)6.
6. The numerator and denominator of the apportionment ratio shall include only that corporation's apportionment factors attributable to unitary business income that is not subject to combination. Intercompany transactions may not be eliminated from the apportionment factors unless the department determines those transactions have no economic substance as determined under the provisions of ss.
71.30 (2m) or
71.80 (1m), Stats., as applicable, or if the department determines that those transactions have no business purpose other than tax avoidance. If the corporation is a combined group member, it must apply the provisions of sub.
(7) (c) in computing the amount of throwback sales includable in the numerator.
Tax 2.61(4)(h)7.
7. Income separately apportioned as described in this paragraph may be reported on a designated line of the combined return, supported by a department-prescribed schedule, instead of reporting that income on a separate return. This separately apportioned income shall be considered a separate entity item. See s.
Tax 2.67 (2) (d) for filing requirements relating to separate entity items.
Tax 2.61 Note
Examples: 1) A, B, and C are corporations in a commonly controlled group and engaged in a unitary business. All of the income of the corporations is derived from the unitary business. A and B are incorporated in Delaware. C is incorporated in France. The income of A and B is derived exclusively from U.S. sources. Ninety percent of C's worldwide gross income is active foreign business income. The remaining 10% of C's worldwide gross income is U.S. source income, some of which has situs in Wisconsin. C has agents acting on its behalf in Wisconsin which create nexus because their activities exceed the protection of P.L. 86-272. Since C is a foreign 80/20 corporation, none of its net income, expenses, or apportionment factors may be included in the unitary combination. Thus, C is not a combined group member.
Tax 2.61 Note
However, C is subject to tax on an apportioned share of its worldwide net income, to the extent the income is not exempt by federal treaty. In determining the apportioned share, the numerator and denominator of C's apportionment factors are its numerator and denominator computed for C on a separate entity basis. Since C is not a combined group member, it cannot consider the activities of A or B when it computes its throwback sales for purposes of the numerator. C is required to report this income to Wisconsin as a separate entity item.
Tax 2.61 Note
2) Combined Group DE consists of Member D and Member E. Both D and E are Delaware corporations. All of the income of D and E is derived from the unitary business. All of D's income is from sources within the U.S. However, 85% of E's worldwide gross income is active foreign business income, making E a domestic 80/20 corporation. E has total of $150,000 of income from the unitary business, net of expenses. Of this amount, $100,000 is derived from intangible property and $50,000 is derived from service fees. D and E must include in the unitary combination all of D's income, expenses, and apportionment factors and E's income, expenses, and apportionment factors only to the extent related to its income derived from intangible property. Since E is a domestic 80/20 corporation and service fees are not one of the types of income subject to combination for a domestic 80/20 corporation, E's service fee income, and expenses and apportionment factors relating to that income, must be excluded from the unitary combination.
Tax 2.61 Note
However, E is subject to tax on an apportioned share of its service fee income. E has nexus in Wisconsin because it is a member of Group DE, which is doing business in Wisconsin. In determining the apportioned share, the numerator and denominator of E's apportionment factors are its numerator and denominator including only the factors relating to its service fee income and computed for E on a separate entity basis. However, since E is a combined group member, it may consider the activities of D when it computes its throwback sales for purposes of the numerator. E is required to report this income to Wisconsin as a separate entity item.
Tax 2.61(5)
(5)
Taxable income of a combined group member. The taxable income of a combined group member consists of the components listed in this subsection. For purposes of pars.
(c) and
(d), a “distinct business activity" means a business activity that is not unitary with the combined group's unitary business. For purposes of determining the expenses and deductions attributable to each component, the provisions of sub.
(6) (h) apply. A combined group member's taxable income is the total of all of the following:
Tax 2.61(5)(a)
(a) Its apportioned share of the combined unitary income, as computed under subs.
(6) and
(7), or, in the case of a combined group where all members are doing businesses solely within Wisconsin, its unitary business income subject to combination as computed under subs.
(6) and
(8). A corporation may have a share of combined unitary income or unitary business income from more than one combined group, in which case s.
Tax 2.67 (2) (d) 4. applies.
Tax 2.61(5)(b)
(b) An apportioned share of the unitary business income not subject to combination under the water's edge rules of sub.
(4), or in the case of a combined group where all members are doing business solely within Wisconsin, its total unitary business income not subject to combination under the water's edge rules of sub.
(4).
Tax 2.61(5)(c)
(c) An apportioned share of income from a distinct business activity conducted within and outside this state wholly by the member.
Tax 2.61(5)(d)
(d) Its income from a distinct business activity conducted entirely within this state wholly by the member.
Tax 2.61(5)(e)
(e) Its nonbusiness income or loss allocable to this state.
Tax 2.61(5)(f)
(f) Its income realized from the purchase and subsequent sale or redemption of lottery prizes, if the winning tickets were originally bought in this state.
Tax 2.61(5)(g)
(g) To the extent not included in combined unitary income under par.
(a), any income, loss, or deduction allocated or apportioned in an earlier year which is taken into account as Wisconsin source income or loss during the taxable year, other than a net business loss carryforward. Under this paragraph, non-sharable net capital loss carryovers may be used to offset the taxable income of a combined group member, as described in sub.
(6) (c).
Tax 2.61(5)(h)
(h) Its net business loss carryforward, including any other combined group members' net business loss carryforwards which may offset the member's share of combined unitary income under the provisions of sub.
(9).
Tax 2.61(6)
(6)
Computation of combined unitary income. This subsection interprets s.
71.255 (4), Stats., relating to a combined group's computation of business income subject to combination, which is called “combined unitary income" for purposes of this section. The steps to compute combined unitary income are as follows:
Tax 2.61(6)(a)1.1. Compute the sum of each combined group member's net income determined under the Internal Revenue Code before Wisconsin modifications, without regard to net capital gain or loss, net gain or loss under section
1231 of the Internal Revenue Code, net gain or loss from involuntary conversions, or deductions for charitable contributions. Compute this income as if the member were not consolidated for federal purposes.
Tax 2.61(6)(a)2.
2. Defer or recognize any intercompany income, expense, gain, or loss between combined group members as described in par.
(b), except to the extent the income, expense, gain, or loss is excluded from the combined unitary income because it does not relate to the unitary business or is not subject to combination under the water's edge rules of sub.
(4).
Tax 2.61(6)(a)3.
3. Add net capital gain includable in the combined unitary income, applying the loss limitation as described in par.
(c) and using the federal basis of assets. Any differences between the federal and Wisconsin basis of assets, including basis differences that arise from the application of par.
(f), are accounted for as Wisconsin modifications under subd.
6. The Wisconsin basis of a corporation's depreciable property for the first year the corporation becomes taxable in Wisconsin equals its federal basis as of the beginning of the taxable year in which the corporation becomes taxable in Wisconsin, as required under s.
71.265, Stats. The federal basis shall be computed under the Internal Revenue Code in effect for federal purposes as required under ss.
71.22 (4) and
(4m),
71.26 (3) (y),
71.42 (2), and
71.98 (3), Stats.
Tax 2.61 Note
Note: Under ss.
71.22 (4) and
(4m),
71.26 (3) (y), and
71.42 (2), Stats., the federal bonus depreciation provisions in section
168(k) of the Internal Revenue Code are excluded from the Internal Revenue Code in effect for Wisconsin purposes. Therefore, the federal basis computed under subd. 3. must be computed without regard to any bonus depreciation claimed for federal purposes.
Tax 2.61(6)(a)4.
4. Subtract any net section 1231 loss or net loss from involuntary conversions that results from the aggregation in par.
(c) 1. Tax 2.61(6)(a)5.
5. Subtract the charitable contributions deduction includable in the combined unitary income, computed as described in par.
(d).
Tax 2.61(6)(a)6.
6. Apply Wisconsin addition and subtraction modifications provided in ss.
71.26 and
71.45, Stats., as applicable. For interest expenses, rent expenses, intangible expenses, and management fees paid, accrued, or incurred between combined group members, including pass-through entities owned by those members to the extent of their distributive shares of income, the addition modifications for related entity expenses under ss.
71.26 (2) (a) 7. and
71.45 (2) (a) 16., Stats., are not required to the extent the recipient of the income includes the income in the combined unitary income.
Tax 2.61(6)(a)7.
7. Subtract any dividends that qualify for elimination under par.
(e) to the extent the dividends did not qualify for a subtraction modification under subd.
6. Tax 2.61(6)(a)8.
8. If a combined group member is an insurance company, subtract the portion of net income attributable to the insurance company's life insurance operations as determined using s.
71.45 (2) (b), Stats.
Tax 2.61(6)(a)9.
9. Subtract the income, as modified by subds.
6. to
8., which is not includable in combined unitary income because it is not derived from the unitary business or is not subject to combination under the water's edge rules of sub.
(4). The income subtracted under this subdivision shall be net of any directly or indirectly related expenses as provided in par.
(h). The amount subtracted under this subdivision may not duplicate any amounts already subtracted.
Tax 2.61(6)(b)
(b) Intercompany transactions. Defer or recognize any intercompany income, expense, gain, or loss between combined group members that would be deferred or recognized between those members under
26 CFR 1.1502-
13 as if the combined group were a federal consolidated group, except that the provisions for intercompany dividends are excluded and replaced with par.
(e). This paragraph does not apply to intercompany transactions which occurred in taxable years beginning before January 1, 2009 or to intercompany transactions where the income, expense, gain, or loss would not otherwise be subject to combination. For modifications to
26 CFR 1.1502-
13 that are necessary in the case of a combined group doing business solely in this state, see sub.
(8). Any deferred intercompany income, expense, gain, or loss that is recognized under this paragraph shall be recognized by the same combined group member that deferred the income, expense, gain, or loss. The deferred income, expense, gain, or loss shall be recognized when required under
26 CFR 1.1502-
13 as if the combined group were a federal consolidated group, or when any of the following apply:
Tax 2.61(6)(b)1.
1. The buyer resells the object of the deferred intercompany transaction to an entity that is not a member of the combined group.
Tax 2.61(6)(b)2.
2. The object of the deferred intercompany transaction is used outside the combined group's unitary business as a result of the buyer's resale, conversion, or transfer of the asset.
Tax 2.61(6)(b)3.
3. The buyer and seller are no longer members of the same combined group, regardless of whether they are in the same unitary business.
Tax 2.61 Note
Example: S and B are combined group members. S has land with a basis of $130,000 at the end Year 1. In Year 2, S sells the land to B for $100,000. B holds the land until Year 3, when it sells it to X, a person outside the combined group, for $110,000. Assume both sales are otherwise includable in the combined unitary income. Applying
26 CFR 1.1502-
13 to S and B in the manner described in this paragraph, S would not recognize any gain or loss on the sale of the land to B in Year 2. However, in Year 3, S would recognize a $30,000 loss and B would recognize a simultaneous $10,000 gain. Thus, in Year 2, the combined group cannot include S's $30,000 loss on sale of land in its combined unitary income, but in Year 3, the combined group can include a $20,000 loss on sale of land (the net amount of S's Year 2 loss and B's Year 3 gain) in its combined unitary income. However, the capital loss limitation may limit this loss, as described further in par. (c).
Tax 2.61(6)(c)
(c) Capital gains and losses. Compute the capital loss limitation so that it applies to the combined group as a whole, to the extent the capital gains and losses are derived from the unitary business and otherwise subject to combination. Rules to determine the capital loss limitation, the assignment of capital gains and losses to members, and the amounts available for carryover, are as follows:
Tax 2.61(6)(c)1.
1. For short-term capital gains or losses, long-term capital gains or losses, section 1231 gains or losses, and involuntary conversions, aggregate all combined group members' amounts within each class of gain or loss. Except as provided in subd.
8., include sharable net capital loss carryovers as described in subd.
2. but not non-sharable net capital loss carryovers.
Tax 2.61(6)(c)2.
2. A combined group member's sharable net capital loss carryover is any available net capital loss carryover which would be a sharable loss carryforward under sub.
(9) (a) if it were a net business loss carryforward. A non-sharable net capital loss carryover is any available net capital loss carryover which would be a non-sharable loss carryforward under sub.
(9) (b) if it were a net business loss carryforward. Net capital loss carryovers that are otherwise non-sharable may be included in the aggregation under subd.
1. if they were carryovers of a subgroup as described in sub.
(9) (e) 1., but only in an amount not exceeding the net capital gain the subgroup would have if its amounts were not aggregated with those of the other combined group members.
Tax 2.61(6)(c)3.
3. Determine and apply the capital loss limitation under section
1211 of the Internal Revenue Code for the combined group based on the aggregate amounts computed in subd.
1. The provisions of
26 CFR 1.1502-
22 and
1.1502-
23, and the regulations which they reference, shall apply for this purpose, except that the separate return limitation year provisions are excluded and replaced with the provisions of this paragraph and except to the extent otherwise inconsistent with ss.
71.26 and
71.45, Stats., and the provisions of this section.
Tax 2.61(6)(c)4.
4. If the result is a net capital gain for the group, the net capital gain shall be apportioned to Wisconsin for the members in the same manner as all other combined unitary income as described in sub.
(7), except that if the combined group is doing business solely in Wisconsin, the net capital gain is assigned to the members as described in sub.
(8) (b). If the result is a net capital loss for the group, the net capital loss shall be assigned to the members that would have a net capital loss from the unitary business if their amounts were not aggregated with those of the other members of the combined group, in proportion to the amount of that net capital loss.
Tax 2.61 Note
Examples: 1) Combined Group PQR consists of Member P, Member Q, and Member R. In Group PQR's unitary combination for 2010, P, Q, and R aggregate their short term capital gains and losses (including sharable capital loss carryovers), long-term capital gains and losses, section 1231 gains and losses, and involuntary conversions, and compute a total of $20,000 in net capital gain for Group PQR. P's Wisconsin apportionment percentage computed under sub. (7) is 10%; Q's is 25%; and R's is 50%. P's apportioned share of this net capital gain is $2,000 (= $20,000 x 10%), Q's apportioned share is $5,000 (= $20,000 x 25%) and R's apportioned share is $10,000 (= $20,000 x 50%).
Tax 2.61 Note
2) Combined Group STU consists of Member S, Member T, and Member U. In the taxable year 2010, S, T, and U have the following capital gains and losses and section 1231 gains and losses attributable to the unitary business and subject to combination:
-
See PDF for table 
Tax 2.61 Note
When S, T, and U aggregate each class of capital gains and losses and section 1231 gains and losses, Group STU has a net capital loss of $10,000. However, if S, T, and U's capital gains and losses and section 1231 gains and losses were not aggregated with one another, S would have a net capital loss of $12,000 (its section 1231 loss would be treated as ordinary under section
1231(a)(2) of the Internal Revenue Code), T would have a net capital loss of $4,000, and U would have a net capital gain of $6,500. Thus, the amount of Group STU's net capital loss that would be assigned to S is $7,500 (= ($12,000 / $16,000) x $10,000) and the amount that would be assigned to T is $2,500 (= ($4,000 / $16,000) x $10,000). None of the net capital loss would be assigned to U since it did not contribute to Group STU's net capital loss.
Tax 2.61(6)(c)5.
5. After applying subd.
4., each member computes its net capital gain or loss from separate entity items without considering capital loss carryover amounts. If the result is a net capital loss, the loss may not be deducted except as provided in subd.
6. If the result is a net capital gain, the member may subtract from that amount, subject to the capital loss limitation, any current year net capital loss from the unitary business as computed in subd.
4. and any available net capital loss carryovers, whether they are sharable or non-sharable. The current year net capital loss from the unitary business shall be considered used before the net capital loss carryovers. Any remaining carryover may be used as provided in subd.
6. Tax 2.61 Note
Example: Assume the same facts as Example 2 in subd. 4. Assume also that S has a $10,000 long term capital gain from separate entity items in 2010 and a net capital loss carryover of $3,000 which was incurred in 2008. Since the current year net capital loss from the unitary business is considered used before the net capital loss carryover, at the end of 2010 S would have a remaining 2008 net capital loss carryover of $500 (= $10,000 - $7,500 current year net capital loss from unitary business - $3,000 net capital loss carryover).
Tax 2.61(6)(c)6.
6. If a member has a share of net capital gain from the unitary business as computed in subd.
4., the member may use any available net capital loss, including current year net capital loss from separate entity items and net capital loss carryovers, to offset that net capital gain. If the group uses apportionment, the member uses the available net capital loss by claiming a deduction equal to the amount of the available net capital loss that does not exceed the group's net capital gain from the unitary business, multiplied by the member's apportionment percentage from the unitary combination. The current year net capital loss from separate entity items shall be considered used before the net capital loss carryovers.
