Comment by pclmulqdq

Considering that this entire discussion revolves around what is and isn't a "capital asset," which itself is a legal term, I would suggest to you that the law is all we have to argue about it. And the law, in general, sucks here.

For most companies, 1221 doesn't apply, but some companies are going to get screwed on this front by having to incur a capital loss to pay for something that is not a capital asset.

In a less legalistic sense, I'm not sure if there are many companies who provide software-backed debt anyway. That would make software less of a "capital asset" than almost any other intangible asset out there.