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TITLE 26-INTERNAL REVENUE CODE excess of capital gains over capital losses). In the case of a trust, the deduction allowed by this subsection shall be subject to section 681 (relating to unrelated business income). (5) Definition of pooled income fund For purposes of paragraph (3), a pooled income fund is a trust- (A) to which each donor transfers proper- ty, contributing an irrevocable remainder interest in such property to or for the use of an organization described in section 170(b)(1)(A) (other than in clauses (vii) or (viii)), and retaining an income interest for the life of one or more beneficiaries (living at the time of such transfer), (B) in which the property transferred by each donor is commingled with property transferred by other donors who have made or make similar transfers, (C) which cannot have investments in se- curities which are exempt from the taxes imposed by this subtitle, (D) which includes only amounts received from transfers which meet the require- ments of this paragraph, (E) which is maintained by the organiza- tion to which the remainder interest is con- tributed and of which no donor or benefi- ciary of an income interest is a trustee, and (F) from which each beneficiary of an income interest receives income, for each year for which he is entitled to receive the income interest referred to in subparagraph (A), determined by the rate of return earned by the trust for such year. For purposes of determining the amount of any charitable contribution allowable by reason of a transfer of property to a pooled fund, the value of the income interest shall be determined on the basis of the highest rate of return earned by the fund for any of the 3 taxable years immediately preceding the taxable year of the fund in which the transfer is made. In the case of funds in exis- tence less than 3 taxable years preceding the taxable year of the fund in which a transfer is made the rate of return shall be deemed to be 6 percent per annum, except that the Sec- retary may prescribe a different rate of return. (6) Taxable private foundations In the case of a private foundation which is not exempt from taxation under section 501(a) for the taxable year, the provisions of this subsection shall not apply and the provi- sions of section 170 shall apply. (d) Net operating loss deduction The benefit of the deduction for net operat- ing losses provided by section 172 shall be al- lowed to estates and trusts under regulations prescribed by the Secretary. (e) Deduction for depreciation and depletion An estate or trust shall be allowed the deduc- tion for depreciation and depletion only to the extent not allowable to beneficiaries under sec- tion 167(h) and 611(b). (f) Amortization deductions The benefit of the deductions for amortiza- tion provided by sections 169, 184, 187, 188, and 191 shall be allowed to estates and trusts in the same manner as in the case of an individual. The allowable deduction shall be apportioned between the income beneficiaries and the fidu- ciary under regulations prescribed by the Secre- tary. (g) Disallowance of double deductions Amounts allowable under section 2053 or 2054 as a deduction in computing the taxable estate of a decedent shall not be allowed as a deduc- tion (or as an offset against the sales price of property in determining gain or loss) in com- puting the taxable income of the estate or of any other person, unless there is filed, within the time and in the manner and form pre- scribed by the Secretary, a statement that the amounts have not been allowed as. deductions under section 2053 or 2054 and a waiver of the right to have such amounts allowed at any time as deductions under section 2053 or 2054. This subsection shall not apply with respect to de- ductions allowed under part II (relating to income in respect of decedents). (h) Unused loss carryovers and excess deductions on termination available to beneficiaries If on the termination of an estate or trust, the estate or trust has- (1) a net operating loss carryover under sec- tion 172 or a capital loss carryover under sec- tion 1212, or (2) for the last taxable year of the estate or trust deductions (other than the deductions allowed under subsections (b) or (c)) in excess of gross income for such year, then such carryover or such excess shall be al- lowed as a deduction, in accordance with regu- lations prescribed by the Secretary, to the beneficiaries succeeding to the property of the estate or trust. (I) Political contributions An estate or trust shall not be allowed the de- duction for contributions to candidates for public office provided by section 218. (j) Certain distributions by cemetery perpetual care funds In the case of a cemetery perpetual care fund which- (1) was created pursuant to local law by a taxable cemetery corporation for the care and maintenance of cemetery property, and (2) is treated for the taxable year as a trust for purposes of this subchapter, any amount distributed by such fund for the care and maintenance of gravesites which have been purchased from the cemetery corporation before the beginning of the taxable year of the trust and with respect to which there is an obli- gation to furnish care and maintenance shall be considered to be a distribution solely for pur- poses of sections 651 and 661, but only to the extent that the aggregate amount so distribut- ed during the taxable year does not exceed $5 multiplied by the aggregate number of such gravesites. (k) Cross references (1) For disallowance of standard deduction in case of estates and trusts, see section 142(b)(4). (2) For special rule for determining the time of receipt of dividends by a beneficiary under section 652 or 662, see section 116(c)(3). § 642 Page 460