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Capital Gains Jabberwocky: Capital Gain, Intangible Property, And Tax, Stephen T. Black

Hofstra Law Review

In the current US tax system, capital gains are taxed at a lower rate than ordinary income. What does that mean for the sale of IP and intangible assets? Is it possible to convert ordinary income to capital gain by changing the form of the transaction?

This article will address anomalies in the tax characterization of intangible assets. Four cases will be presented, each of which, arguably, could consistently produce capital gains. As will be shown, however, the treatment of these cases (and others) is anything but consistent. At the conclusion of the four cases, it should be clear that …