Personal Finance

More than 1.2 million taxpayers deduct their business losses

Here's how the the Trump tax loophole works
Here's how the the Trump tax loophole works

The net operating loss deduction has been getting a lot of attention after it was revealed that Donald Trump took a $916 million loss on his 1995 income-tax return.

Rudy Giuliani, the former New York mayor who is one of Trump's advisors, said the move "shows what a genius he is."

If that's the case, America has a lot of tax geniuses.

"I see some people on both sides in politics portraying [net operating losses] as some kind of obscure genius tax strategy. In reality, it's an ordinary feature of the tax code that every tax professional knows about," said Alan Cole, an economist with the Center for Federal Tax Policy at the Tax Foundation.

To be sure, the size of Trump's write-off is huge. His net operating loss, known in tax circles as NOL, in 1995 was more than 9,000 times the average amount claimed that year.

"Put it this way: Trump's alleged loss of $916 million would be 1.9 percent of the entire NOL value of the entire country," Cole said.

More than 1.2 million taxpayers filed for an NOL deduction in 2014, the most recent tax year where statistics from the Internal Revenue Service are available. The average deduction was $163,292 (see chart below).

The total size of NOL deductions on individual tax returns has grown from $49.3 billion in 1995, when Trump reported his tax loss, to $196.2 billion in 2014.

A lot of the increase in loss deductions happened because of the Great Recession and the considerable expansion of the economy over the past 20 years, Cole said.

You don't need to be a billionaire to claim a net operating loss. Generally, small-business owners can deduct any loss a business incurs from their other income on their tax returns if that business is a sole proprietorship. If the business is a limited liability company or a partnership, losses passed through the business to the individual can be deducted.

Individual taxpayers can either apply their NOL to their past two tax returns or use that loss for up to 20 years. Under tax law in 1995, when Trump filed his loss, business owners could only carry their losses forward for 18 years.

If history is a guide, taxpayers who use the NOL deduction may not appreciate the scrutiny Trump brings to the tax break.

"In 1933, during the famous Pecora investigation of Wall Street, numerous financial leaders were revealed to have paid no income taxes in the wake of the crash of 1929. Their trading losses wiped out all their other income," said Joseph Thorndike, director of the Tax History Project at Tax Analysts. "People were scandalized by that fact, even though it was all 'perfectly legal' ... a phrase that was as popular then as it is now."

The public outrage prompted Congress to pass laws that limited business-loss deductions, Thorndike said.