Code section · 1962
IRC Section 38
IRC Section 38
Internal Revenue Code
Audio summary
A short audio walkthrough of this rule: what it says and why it matters for your study.
What it holds
Defined eligible property for Investment Tax Credit purposes. Section 38 property was tangible personal property and certain other tangible property used in a trade or business, but did not include buildings or their structural components.
Why it matters for your study: The ITC-era definition of Section 38 property is the historical root of modern Section 1245 classification. The court cases that built the cost segregation framework, including Hospital Corp. of America, all applied the Section 38 definition. That definition carried into MACRS via A.O.D. 1999-008.
Where this comes from
Congress enacted the Investment Tax Credit in 1962 as an incentive for business investment in machinery and equipment. Section 38 of the Internal Revenue Code defined the property that qualified, which is why eligible property was called Section 38 property.
The key distinction was tangible personal property versus buildings and their structural components. Tangible personal property qualified for the credit. Buildings and their structural components did not.
What it established
Section 38 property meant tangible personal property and certain other tangible property used in a trade or business or for the production of income. Buildings and their structural components were excluded.
This exclusion forced taxpayers to argue, for every piece of property in and around a building, whether it was a structural component of the building or tangible personal property. The courts developed tests for this analysis. Those tests are the foundation of the classification work in every cost segregation study today.
How it connects to a study today
The ITC was repealed by the Tax Reform Act of 1986. But the tests the courts developed for Section 38 classification did not disappear. They were carried forward.
In Hospital Corp. of America (1997), the Tax Court applied those same ITC-era tests to determine how assets should be classified under MACRS. When the IRS acquiesced in A.O.D. 1999-008, it endorsed using the ITC-era personal property tests for MACRS. That bridge is why a 1970s court case about an investment tax credit is still cited in a 2025 cost segregation study.
What it does not mean
Section 38 is a repealed statute. The ITC no longer exists. Citing Section 38 as current authority for a depreciation position would be wrong.
Its role is as a historical root. The definitions it created, interpreted by the courts, are the conceptual source of modern asset classification. The operative authority today is Section 1245, the MACRS provisions, and the IRS guidance that bridges the two eras.
Primary source
Read the official text for yourself, or share it with your advisor.
- Category
- Asset classification
- Applies to
- All property types
- Status
- Vetted
This page explains a tax authority in plain words. It is not tax advice for your situation. The way this authority applies to your property is reviewed by a licensed tax professional. Citation is provided so you or your advisor can read the primary source.