At-Risk Rules
Tax rules limiting loss deductions to the amount a taxpayer has economically at risk in an activity.
The at-risk rules, codified in IRC Section 465, limit a taxpayer's deductible losses from any activity to the amount the taxpayer has 'at risk' in that activity—meaning the amount they could actually lose from the activity. At-risk rules apply before the passive activity rules, creating a two-step loss limitation test.
A taxpayer is considered at risk for cash contributed, adjusted basis of property contributed, and borrowed amounts for which the taxpayer is personally liable or has pledged property as security. A taxpayer is NOT at risk for non-recourse debt (with a limited exception for qualified non-recourse real estate financing), amounts protected against loss by stop-loss agreements, amounts borrowed from parties with an interest in the activity, or amounts for which the taxpayer has any other form of loss protection.
At-risk rules prevent tax shelter promoters from generating losses in excess of the actual economic exposure of investors. A limited partner who invested $10,000 in a tax shelter that generated $100,000 of paper losses could previously deduct $100,000; at-risk rules limit the deduction to $10,000—the actual amount at economic risk.
Disallowed losses due to at-risk limitations carry forward to future years when the at-risk amount increases (through additional contributions, assumption of recourse debt, or activity generating income). Losses disallowed under at-risk rules that are also passive activities carry into the passive loss carryforward pool.
Real estate qualifies for a special rule: qualified non-recourse financing from a bank or government lender secured by real property is treated as at-risk, even though the borrower is not personally liable. This exception allows real estate investors to count their mortgage balances in at-risk amounts.
FAQs
How do at-risk rules interact with passive activity rules?
At-risk rules and passive activity rules are independent but sequential loss limitation tests. At-risk rules apply first: losses are limited to the amount at risk in the activity. Losses that survive the at-risk test then face the passive activity rules: if the activity is passive (no material participation), surviving losses can only offset passive income. A loss disallowed by at-risk rules never reaches the passive activity analysis. Conversely, losses disallowed under passive activity rules carry forward as passive activity losses, maintaining their at-risk treatment in the future year.
What is recourse versus non-recourse debt for at-risk purposes?
Recourse debt is borrowing for which the taxpayer is personally liable—if the activity fails and the asset is insufficient to repay the debt, the lender can pursue the taxpayer's other assets. Recourse debt increases at-risk amounts because the taxpayer faces genuine economic exposure. Non-recourse debt limits the lender's recovery to the collateral only; the taxpayer is not personally exposed. Non-recourse debt generally does not increase at-risk amounts, except for qualified non-recourse financing secured by real property (from qualified lenders, not sellers or related parties).
Can at-risk amounts go negative, and what happens if they do?
Yes—if a taxpayer receives distributions exceeding their at-risk basis, or if their at-risk amount declines below zero due to activity losses or other recoupments, the at-risk amount becomes negative. When at-risk amounts go negative, previously allowed deductions must be recaptured as income (included in gross income) to the extent at-risk goes below zero. This recapture applies to prior-year deductions that generated negative at-risk, effectively reversing tax benefits claimed when the taxpayer was genuinely at economic risk but is no longer.
Related Terms
Passive Activity Rules
IRS rules limiting deduction of losses from activities in which the taxpayer does not materially participate.
Hobby Loss Rules
IRS rules that disallow deducting losses from activities not engaged in with a profit motive.
Depreciation
The systematic allocation of a tangible asset's cost over its useful life, reducing its book value on the balance sheet each period.
Like-Kind Exchange
Tax-deferred swap of investment real estate for similar property under IRS Section 1031.
