Capital loss carryover.

(1) Where a husband and wife file a joint Federal income tax return but are required to file separate New York State personal income tax returns, the capital loss carryover allowable on the separate New York State personal income tax return of each spouse is the amount of capital loss carryover which would be allowable if a separate Federal income tax return had been filed by each spouse for the taxable year involved. H and W file a joint Federal income tax return, including therein H's short-term capital gain of $10,000 and W's short-term capital loss of $9,000. On their joint Federal income tax return, a net short-term capital gain of $1,000 would be reportable and there would be no capital loss carryover for Federal income tax purposes, regardless of whether H and W file a joint or separate Federal income tax return in the subsequent taxable year. On their separate New York State personal income tax returns, H would include his capital gain of $10,000 and W would report a capital loss which would be limited to the maximum amount of capital loss allowed a married individual filing a separate Federal income tax return. W would not be allowed a capital loss carryover on her subsequent New York State personal income tax return since she cannot claim a capital loss carryover on her subsequent Federal income tax return whether a joint or separate Federal income tax return is filed.

(2) The New York State capital loss carryover of either spouse is determined solely by the amount that would be allowable for Federal income tax purposes if separate Federal income tax returns had been filed. No adjustment or modification may be made on the basis of any New York State capital loss carryover from a year when article 16 of the Tax Law was applicable. See section 112.3(d)(5) of this Part.