Hotchpot
Encyclopedia
In property law
, hotchpot (sometimes referred to as hotchpotch or the hotchpotch rule) refers to the blending or combining of property in order to ensure equality of division. It usually arises in cases of divorce
or in connection with advances made from the estate of a deceased, if so provided for in his Will. Hotchpot was abolished for all persons dying intestate ( that is without a Will)by section 1(2)of the Law Reform (Succession) Act 1995 in respect of all intestates dying on or after January 1 1996.
The name hotch-pot is taken from a kind of pudding
. The term is derived from the French
word hocher, or "shake." It was used as early as 1292 as a law term, and from the 15th century in cooking for a sort of broth
with many ingredients (see Hodge-Podge soup), and so it is used figuratively for any heterogeneous mixture.
, Hotch-pot or hotch-potch is the name given to a rule of equity whereby a person, interested along with others in a common fund, and having already received something in the same interest, is required to surrender what has been so acquired into the common fund, on pain of being excluded from the distribution. The same principle is to be found in the collatio bonorum of Roman law
: emancipated
children, in order to share the inheritance
of their father with the children unemancipated, were required to bring their property into the common fund.
It is also found in the law
of Scotland
.
A section 1231 loss is any loss that occurs under the same circumstances required for a section 1231 gain. Under this definition, the term “property used in the trade or business” is subject to the limitations of Section 1231(b) of the Internal Revenue Code. Additionally, A capital asset is property held by the taxpayer, whether or not that property is connected with his trade or business, but not that which falls into the eight categories set forth in Section 1221(a). Those eight sections are:
Hotchpot gains and losses are given preferential status by Section 1231 of the Code, a taxpayer-friendly policy that dates back to the World War II era. (Samuel A. Donaldson, Federal Income Taxation of Individuals: Cases, Problems and Materials 519 (2nd ed. 2007). This preferential status allows hotchpot gains and losses to be treated as long-term capital gains and losses when the gains are greater than the losses (thereby treating the net gain at a more favorable tax rate), and allows them to be treated as ordinary income and ordinary losses when the gains are less than or equal to the losses (thereby allowing the losses to cancel out the income) (Id. at 522.) Under the Code, long-term capital gains are gains from the sale or exchange of a capital asset held for more than one year, if and to the extent that such gain is considered when computing gross income. Long-term capital losses are those from the sale or exchange of a capital asset held for more than one year, if and to the extent that such losses are considered in computing taxable income.
While the average taxpayer may have no need to identify "1231 gains and losses" as "Hotchpot gains and losses," that taxpayer likely benefits from the preferential tax treatment.
In addition, section 1231(a)(4)(C) contains a special rule for the purposes of determining whether a § 1231 gain or § 1231 loss enters the hotchpot. (Samual A. Donaldson, Federal Income Taxation of Individuals: Cases, Problems and Materials. 521 (2nd ed. 2007)). This subsection states that if recognized losses from an involuntary conversion as a result of casualty or from theft, of any property used in the trade or business or of any capital asset held for more than one year, exceed the recognized gains from an involuntary conversion of any such property as a result of casualty or from theft, such losses and gains do not enter the hotchpot. 26 U.S.C. § 1231(a)(4)(C). Thus, section 1231 does not apply to gains and losses resulting from casualties and thefts if the losses exceed the gains. The practical effect of this subsection is that net losses from such involuntary conversions will be treated as ordinary income. Reg. § 1.1231-1(e)(3).
Abolished by s1(2) Law Reform (Succession) Act 1995 in intestacy cases from 1 January 1996.
Property law
Property law is the area of law that governs the various forms of ownership in real property and in personal property, within the common law legal system. In the civil law system, there is a division between movable and immovable property...
, hotchpot (sometimes referred to as hotchpotch or the hotchpotch rule) refers to the blending or combining of property in order to ensure equality of division. It usually arises in cases of divorce
Divorce
Divorce is the final termination of a marital union, canceling the legal duties and responsibilities of marriage and dissolving the bonds of matrimony between the parties...
or in connection with advances made from the estate of a deceased, if so provided for in his Will. Hotchpot was abolished for all persons dying intestate ( that is without a Will)by section 1(2)of the Law Reform (Succession) Act 1995 in respect of all intestates dying on or after January 1 1996.
The name hotch-pot is taken from a kind of pudding
Pudding
Pudding most often refers to a dessert, but it can also be a savory dish.In the United States, pudding characteristically denotes a sweet milk-based dessert similar in consistency to egg-based custards, though it may also refer to other types such as bread and rice pudding.In the United Kingdom and...
. The term is derived from the French
French language
French is a Romance language spoken as a first language in France, the Romandy region in Switzerland, Wallonia and Brussels in Belgium, Monaco, the regions of Quebec and Acadia in Canada, and by various communities elsewhere. Second-language speakers of French are distributed throughout many parts...
word hocher, or "shake." It was used as early as 1292 as a law term, and from the 15th century in cooking for a sort of broth
Broth
Broth is a liquid food preparation, typically consisting of either water or an already flavored stock, in which bones, meat, fish, cereal grains, or vegetables have been simmered. Broth is used as a basis for other edible liquids such as soup, gravy, or sauce. It can be eaten alone or with garnish...
with many ingredients (see Hodge-Podge soup), and so it is used figuratively for any heterogeneous mixture.
English law
In English lawEnglish law
English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...
, Hotch-pot or hotch-potch is the name given to a rule of equity whereby a person, interested along with others in a common fund, and having already received something in the same interest, is required to surrender what has been so acquired into the common fund, on pain of being excluded from the distribution. The same principle is to be found in the collatio bonorum of Roman law
Roman law
Roman law is the legal system of ancient Rome, and the legal developments which occurred before the 7th century AD — when the Roman–Byzantine state adopted Greek as the language of government. The development of Roman law comprises more than a thousand years of jurisprudence — from the Twelve...
: emancipated
Emancipation of minors
An emancipated minor is a minor who is allowed to conduct a business or any other occupation on their own behalf or for their own account outside the influence of a parent or guardian. The minor will then have full contractual capacity to conclude contract with regard to the business. Whether...
children, in order to share the inheritance
Inheritance
Inheritance is the practice of passing on property, titles, debts, rights and obligations upon the death of an individual. It has long played an important role in human societies...
of their father with the children unemancipated, were required to bring their property into the common fund.
It is also found in the law
Scots law
Scots law is the legal system of Scotland. It is considered a hybrid or mixed legal system as it traces its roots to a number of different historical sources. With English law and Northern Irish law it forms the legal system of the United Kingdom; it shares with the two other systems some...
of Scotland
Scotland
Scotland is a country that is part of the United Kingdom. Occupying the northern third of the island of Great Britain, it shares a border with England to the south and is bounded by the North Sea to the east, the Atlantic Ocean to the north and west, and the North Channel and Irish Sea to the...
.
United States
Hotchpot is a slang term referring to the blended group of Section 1231 "Gains and Losses" of the U.S. Tax Code. According to the Code, a section 1231 gain is:- Any recognized gain on the sale or exchange of property used in the trade or business, and
- Any recognized gain from compulsory/involuntary conversion of
- Property used in the trade or business, or
- Any capital asset which is held for more than one year and is held in connection with a trade or business or a transaction entered into for profit
- Into other property or money
- Because of
- Total or partial destruction
- Theft or seizure
- An exercise of the power of requisition or condemnation
- Threat or imminence of such exercise
A section 1231 loss is any loss that occurs under the same circumstances required for a section 1231 gain. Under this definition, the term “property used in the trade or business” is subject to the limitations of Section 1231(b) of the Internal Revenue Code. Additionally, A capital asset is property held by the taxpayer, whether or not that property is connected with his trade or business, but not that which falls into the eight categories set forth in Section 1221(a). Those eight sections are:
- Property held by the taxpayer primarily for sale to customers, or stock or inventory
- Property used in a trade or business which is subject to depreciation in section 167, or real property used in trade or business
- A copyright, composition, letter/memo, or something similar, held by the person who made the property, or, in the case of letter/memo, for whom the property was prepared/produced, or the person who determines the basis of such property
- Accounts or notes receivable acquired in the normal course of trade or business for services rendered or sale of property to customers from stock/inventory
- A publication of the U.S. Government which is received by the Government or one of its agencies, unless it is purchased at a public sale price and is held by the taxpayer who received it or the taxpayer who determines its basis
- Any commodities derivative financial instrument held by such a dealer, unless the Secretary of the Treasury is satisfied that the instrument has no connection to the holder’s activities as a dealer and the instrument is clearly identified in the dealer’s records as such before the close of the day on which it was acquired, originated, or entered into
- Any hedging transaction clearly identified as such before the close of the day on which it was acquired, originated, or entered into
- Supplies of the type regularly used/consumed by the taxpayer in the ordinary course of trade/business
Hotchpot gains and losses are given preferential status by Section 1231 of the Code, a taxpayer-friendly policy that dates back to the World War II era. (Samuel A. Donaldson, Federal Income Taxation of Individuals: Cases, Problems and Materials 519 (2nd ed. 2007). This preferential status allows hotchpot gains and losses to be treated as long-term capital gains and losses when the gains are greater than the losses (thereby treating the net gain at a more favorable tax rate), and allows them to be treated as ordinary income and ordinary losses when the gains are less than or equal to the losses (thereby allowing the losses to cancel out the income) (Id. at 522.) Under the Code, long-term capital gains are gains from the sale or exchange of a capital asset held for more than one year, if and to the extent that such gain is considered when computing gross income. Long-term capital losses are those from the sale or exchange of a capital asset held for more than one year, if and to the extent that such losses are considered in computing taxable income.
While the average taxpayer may have no need to identify "1231 gains and losses" as "Hotchpot gains and losses," that taxpayer likely benefits from the preferential tax treatment.
In addition, section 1231(a)(4)(C) contains a special rule for the purposes of determining whether a § 1231 gain or § 1231 loss enters the hotchpot. (Samual A. Donaldson, Federal Income Taxation of Individuals: Cases, Problems and Materials. 521 (2nd ed. 2007)). This subsection states that if recognized losses from an involuntary conversion as a result of casualty or from theft, of any property used in the trade or business or of any capital asset held for more than one year, exceed the recognized gains from an involuntary conversion of any such property as a result of casualty or from theft, such losses and gains do not enter the hotchpot. 26 U.S.C. § 1231(a)(4)(C). Thus, section 1231 does not apply to gains and losses resulting from casualties and thefts if the losses exceed the gains. The practical effect of this subsection is that net losses from such involuntary conversions will be treated as ordinary income. Reg. § 1.1231-1(e)(3).
Abolished by s1(2) Law Reform (Succession) Act 1995 in intestacy cases from 1 January 1996.