6. What does “held for investment or productive use” mean?

Since the Code does not clearly define the term "held for productive use in a trade or business or for investment," the definition is subject to interpretation and has given rise to great uncertainty. Unproductive real estate that is "held by a non dealer for future use or for future realization of the increment in value" (in other words, held for appreciation) is held for investment and qualifies. Qualifying property not held for investment must be used in a trade or business that you are engaged in. Practitioners generally agree that property which was acquired for a qualifying use but which is now inactive will continue to qualify. Theoretically, your intention to hold for productive use in a trade or business or for investment must satisfy the statutory requirement of the Code. However, a substantial risk of invalidation may exist in the event there is no obvious trade or business use and/or the holding period is of short duration. In such circumstances, the burden of proof weighs heavily and you are well advised to carefully document your intention to hold for investment. Lastly, minimum and incidental use of otherwise qualifying property may not necessarily disqualify property.

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