|This article needs additional citations for verification. (December 2007)|
In civil and 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 to allocate shares of a deceased person's estate subsequent to advances or lifetime gifts made by the decedent.
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 legal 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.
In English law, 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 in cases of succession and is known as collatio inter liberos. Likewise, hotchpot exists in South Africa also with respect to succession under the name "collation".
In Canada the presumption of advancement is applied such that in most Canadian provinces, the receipt of property or land that would otherwise be disposed by will, by a beneficiary in advance, of that will, may be part or all of their entitlement under the will. However most provinces explicitly do not require the return of the advancement, and also provide for its valuation as of the time of receipt not death. As with the UK "pain of being excluded from the distribution", a refusal to provide such valuation could be a rationale for exclusion from receiving new property.
For instance, in Nova Scotia, "if a child or grandchild of a person who has died wholly intestate has been advanced by the intestate by portion, the portion shall be reckoned... as part of the estate of the intestate distributable according to law" and valued as of the time of receipt not death. 
|This section requires expansion with: more explanation of how hotchpot operates in advancements/intestacy and satisfaction/wills. (October 2014)|
Certain state laws refer to hotchpot in describing the laws of intestate succession (i.e. succession without a will). See, for example, Virginia Code § 64.2-206. Advancements brought into hotchpot.
Internal Revenue Code
- 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. 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. 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. 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 (abolished by s1(2) Law Reform (Succession) Act 1995 in intestacy cases from 1 January 1996).
- Webster's New Collegiate Dictionary, ISBN 0-87779-339-5
- "Hotchpot definition". Nolo's Plain-English Law Dictionary. Retrieved 17 October 2014.
- "Hotchpot". Practical Law. Thomson Reuters. Retrieved 17 October 2014.
- Donaldson, Samuel A. Federal Income Taxation of Individuals: Cases, Problems and Materials, 2007 (2nd edition), p. 519.
- Donaldson, Samual A. Federal Income Taxation of Individuals: Cases, Problems and Materials, 2007 (2nd edition), p. 521.
- 26 U.S.C. § 1231(a)(4)(C)
- Reg. § 1.1231-1(e)(3)