i461--dft

Note: The draft you are looking for begins on the next page.

Caution: DRAFT—NOT FOR FILING
This is an early release draft of an IRS tax form, instructions, or publication,
which the IRS is providing for your information. Do not file draft forms and do
not rely on draft forms, instructions, and publications for filing. We do not
release draft forms until we believe we have incorporated all changes (except
when explicitly stated on this coversheet). However, unexpected issues
occasionally arise, or legislation is passed—in this case, we will post a new draft
of the form to alert users that changes were made to the previously posted draft.
Thus, there are never any changes to the last posted draft of a form and the
final revision of the form. Forms and instructions generally are subject to OMB
approval before they can be officially released, so we post only drafts of them
until they are approved. Drafts of instructions and publications usually have
some changes before their final release.
Early release drafts are at IRS.gov/DraftForms and remain there after the
final release is posted at IRS.gov/LatestForms. All information about all forms,
instructions, and pubs is at IRS.gov/Forms.
Almost every form and publication has a page on IRS.gov with a friendly
shortcut. For example, the Form 1040 page is at IRS.gov/Form1040; the Pub.
501 page is at IRS.gov/Pub501; the Form W-4 page is at IRS.gov/W4; and the
Schedule A (Form 1040/SR) page is at IRS.gov/ScheduleA. If typing in a link
above instead of clicking on it, be sure to type the link into the address bar of
your browser, not a Search box.
If you wish, you can submit comments to the IRS about draft or final forms,
instructions, or publications at IRS.gov/FormsComments. We cannot respond to
all comments due to the high volume we receive and may not be able to
consider many suggestions until the subsequent revision of the product.
If you have comments on reducing paperwork and respondent (filer) burden,
with respect to draft or final forms, please respond to the relevant information
collection through the Federal Register process; for more info, click here.

2021

Instructions for Form 461

Department of the Treasury
Internal Revenue Service

Limitation on Business Losses

Who Must File

DRAFT AS OF
December 2, 2021

Section references are to the Internal Revenue
Code unless otherwise noted.

General Instructions
Future Developments

For the latest information about
developments related to Form 461 and
its instructions, such as legislation
enacted after they were published and
specific instructions for tax-exempt
trusts, go to IRS.gov/Form461.

What’s New
Excess business losses. Excess
business losses for noncorporate
taxpayers are limited to tax years
beginning after 2020 and before 2027.
Also, excess business losses are now
computed without regard to any
deduction allowed under section 172 or
199A and without regard to any
deductions, gross income, or gains
attributable to any trade or business of
performing services as an employee.
Treatment of capital gains and losses. Losses from sales or exchanges
of capital assets shall not be included in
the calculation of trade or business
deduction.
Gains from the exchange of capital
assets should not exceed the lesser of
capital gain net income limited to only
gains and losses attributable to a trade
or business, or capital gain net income.

Purpose of Form

The Tax Cuts and Jobs Act limited the
amount of losses from the trades or
businesses of noncorporate taxpayers
that the taxpayers can claim each year.
Taxpayers can’t deduct an excess
business loss (see Definitions, later) in
the current year. However, the excess
business loss is treated as a net
operating loss (NOL) carryover. See
Pub. 536, Net Operating Losses (NOLs)
for Individuals, Estates, and Trusts, for
more information on NOL carryovers.
Use Form 461 to figure the excess
business loss. See Who Must File and
the instructions for Line 16, later, to find
where to report the excess business
loss on your return.

Nov 05, 2021

File Form 461 if you’re a noncorporate
taxpayer and your net losses from all of
your trades or businesses are more than
$262,000 ($524,000 for married
taxpayers filing a joint return). A trust
subject to tax under section 511 should
complete Form 461 if it has a loss
attributable to its trade or business of
more than $262,000. See Definitions,
later. Attach Form 461 to the applicable
tax return you file.
• Form 1040, U.S. Individual Income
Tax Return.
• Form 1040-SR, U.S. Tax Return for
Seniors.
• Form 1040-NR, U.S. Nonresident
Alien Income Tax Return.
• Form 1041, U.S. Income Tax Return
for Estates and Trusts.
• Form 1041-QFT, U.S. Income Tax
Return for Qualified Funeral Trusts.
• Form 1041-N, U.S. Income Tax
Return for Electing Alaska Native
Settlement Trusts.
• Form 990-T, Exempt Organization
Business Income Tax Return.

Definitions
Excess business loss. An excess
business loss is the amount by which
the total deductions (computed without
regard to any deduction allowed under
section 172 or 199A) from your trades
or businesses are more than your total
gross income or gains from your trades
or businesses, plus the threshold
amount. Such excess losses should be
determined without regard to any
deductions, gross income, or gains
attributable to any trade or business of
performing services of an employee.
Threshold amount. For 2021, the
threshold amount is $262,000
($524,000 for married taxpayers filing a
joint return). These amounts are
indexed for inflation.
Treatment of capital gains and losses. Losses from sales or exchanges
of capital assets shall not be included in
the calculation of trade or business
deduction.
Gains from the exchange of capital
assets should not exceed the lesser of:

Cat. No. 71453Z

1. Capital gain net income limited to
only gains and losses attributable to a
trade or business, or
2. Capital gain net income.
Trade or business. An activity
qualifies as a trade or business if your
primary purpose for engaging in the
activity is for income or profit and you’re
involved in the activity with continuity
and regularity. The facts and
circumstances of each case determine if
an activity is a trade or business. The
regularity of activities and transactions
and the production of income are
important elements. You don’t need to
actually make a profit to be in a trade or
business as long as you have a profit
motive. However, you do need to make
ongoing efforts to further the interests of
your business.
Note. If you own an interest in a
partnership or S corporation, the trade
or business determination is made at
that entity's level.

Ordering Rules

First, apply the at-risk rules; next, apply
the passive activity loss rules; and then
apply the excess business loss rules.
See the Instructions for Form 6198, AtRisk Limitations. Also, see Pub. 925,
Passive Activity and At-Risk Rules.
Farming losses. Taxpayers with
losses from a farming business must
apply the excess business loss
limitation before carrying any NOLs
back 2 years. See the Instructions for
Form 1045, Application for Tentative
Refund.
Farming and nonfarming losses. If
you incur both farming and nonfarming
business losses that are more than the
threshold amount (see Definitions,
earlier), you must allocate the threshold
amount first to the farming losses to the
extent you have an NOL.

Transition Rules

If you had losses or deductions that
were limited under other provisions of
the Internal Revenue Code in prior tax
years, those losses or deductions are
included in figuring the amount, if any, of
your excess business loss in 2021.

Additional Information

See the following publications for more
information about the items in these
instructions.
• Pub. 225, Farmer’s Tax Guide.
• Pub. 536, Net Operating Losses
(NOLs) for Individuals, Estates, and
Trusts.
• Pub. 925, Passive Activity and
At-Risk Rules.

Line 6

Enter any farm income or loss reported
on Schedule 1 (Form 1040 or 1040-NR),
line 6; Form 1041, line 6; Form
1041-QFT, Part II, line 4; or Form
1041-N, Part II, line 4.

Line 7

• Don’t enter any loss amount on this
line from Schedule D if the loss from
your trade or business is equal to or
greater than ($3,000).
Line 12

Subtract line 11 from line 10. The
resulting figure is your gain or loss that’s
not from a trade or business. Use this
amount in Part III to figure your excess
business loss. See Definitions, earlier.

DRAFT AS OF
December 2, 2021

Specific Instructions

Joint returns. Complete one Form 461
containing all the information for both
spouses.
Amended returns. Attach Form 461 to
any applicable amended returns.

Part I—Total Income/Loss
Items

Use Part I to report all the income and
losses reflected on your applicable tax
return. If you’re filing a return other than
Form 1040 or 1040-SR, see the
instructions below for the specific line
that’s an equivalent to the line on Form
1040 or 1040-SR. If the line instructions
don’t reference a form listed under Who
Must File, earlier, then it’s not
applicable.

Line 1

Leave line 1 blank.

Line 2

Enter any business income or loss
reported on Schedule 1 (Form 1040),
line 3; Form 1040-NR, line 8; or Form
1041, line 3.

Line 3

Enter any capital gains or losses
reported on Form 1040, line 7; Form
1040-NR, line 7; Form 1041, line 4;
Form 1041-QFT, Part II, line 3; or Form
1041-N, Part II, line 3.

Line 4

Enter any other gains or losses reported
on Schedule 1 (Form 1040 or 1040-NR),
line 4; Form 1041, line 7; Form
1041-QFT, Part II, line 4; or Form
1041-N, Part II, line 4.

Line 5

Enter any supplemental income or loss
reported on a Schedule E, such as
income from rental real estate, royalties,
partnerships, S corporations, estates,
trusts, REMICs, etc. This is reported on
Schedule 1 (Form 1040 or 1040-NR),
line 5; Form 1041, line 5; Form
1041-QFT, Part II, line 4; or Form
1041-N, Part II, line 4.

Leave line 7 blank.

Line 8

Enter any other trade or business
income, gain, or loss not reported on
lines 1 through 7 that you reported on
your tax return.

Line 9

Part III—Limitation on
Losses

Use Part III to apply the threshold
limitation and figure the excess
business loss. See Definitions, earlier.

Combine all the entries from lines 1
through 8 on line 9. The resulting figure
can be a positive or negative number.

Line 14

Part II—Adjustment for
Amounts not Attributable
to Trade or Business

Line 16

Use Part II to report the income, gain, or
loss from your tax return that’s not from
a trade or business. The information will
then be used to figure the excess
business loss. See Definitions, earlier.

Line 10

Enter the combined amount of income
or gain you reported on lines 1 through
8 above that’s not from a trade or
business. See Definitions, earlier. If you
filed a tax return other than a Form
1040, see the specific line references
for the tax return in the specific line
instructions in Part l, earlier.

Line 11

Enter the combined amount of losses or
deductions you reported on lines 1
through 8 above that’s not from a trade
or business. See the definition of a trade
or business, earlier. If you filed a tax
return other than a Form 1040, see the
specific line references for the tax return
in the specific line instructions in Part l,
earlier.
Although losses and deductions
are usually entered as negative
CAUTION figures on other forms or
worksheets, enter them as a positive
figure on this line.

!

Note. For amounts reported on
Schedule D, if line 3 is a loss limited to
($3,000), determine the amount of the
loss not from a trade or business as
follows.
• If the loss from your trade or business
is less than ($3,000), enter the
difference between ($3,000) and your
trade or business loss.
-2-

Add lines 9 and 13. The resulting figure
can be a positive or negative number.

If the resulting figure on this line is a
negative amount, then it’s your excess
business loss. See Definitions, earlier.
Although it’s a loss, you will report the
excess business loss adjustment as a
positive number on the “Other income”
line on your tax return and enter “ELA”
on the dotted line. The “Other Income”
lines are located on the following lines
based on the type of tax return.
• Schedule 1 (Form 1040), line 8o.
• Form 1040-NR, line 8.
• Form 1041, line 8.
• Form 1041-QFT, Part II, line 4.
• Form 1041-N, Part II, line 4.
• Schedule A (Form 990-T), Part I,
line 12 (applicable to trusts only).

You’ll need to keep a record of
your excess business loss from
RECORDS each tax year because it’s
treated as an NOL carryover. See Pub.
536, Net Operating Losses (NOLs) for
Individuals, Estates, and Trusts, for
more information on NOL carryovers
and reporting NOLs on future tax year
returns.
Privacy Act and Paperwork Reduction Act Notice. We ask for the
information on this form to carry out the
Internal Revenue laws of the United
States. We need this information to
ensure that you’re complying with these
laws and to allow us to figure and collect
the right amount of tax. Our legal right to
ask for the information requested on this
form is sections 6001, 6011, 6012(a),
and 6109 and their regulations. If you
don’t provide this information, or you
provide incomplete or false information,
you may be subject to penalties.

Instructions for Form 461 (2021)

You’re not required to provide the
information requested on a form that’s
subject to the Paperwork Reduction Act
unless the form displays a valid OMB
control number. Books or records
relating to a form or its instructions must
be retained as long as their contents
may become material in the
administration of any Internal Revenue
law. Generally, tax returns and return
information are confidential, as required
by section 6103. However, we may give
this information to the Department of
Justice for civil and criminal litigation,
and to cities, states, the District of

Columbia, and U.S. commonwealths
and possessions to carry out their tax
laws. We may also disclose this
information to other countries under a
tax treaty, to federal and state agencies
to enforce federal nontax criminal laws,
or to federal law enforcement and
intelligence agencies to combat
terrorism.

under OMB control numbers 1545-0074
and 1545-0123 and is included in the
estimates shown in the instructions for
their individual and business income tax
return. The estimated burden for all
other taxpayers who file this form is
shown below.

The time needed to complete and file
this form will vary depending on
individual circumstances. The estimated
burden for individual and business
taxpayers filing this form is approved

If you have suggestions for making
this form simpler, we would be happy to
hear from you. See the instructions for
your income tax return.

Preparing the form. . . . . . . . 23 min.

DRAFT AS OF
December 2, 2021

Instructions for Form 461 (2021)

-3-