§ 988. Treatment of certain foreign currency transactions
(a)
General rule
Notwithstanding any other provision of this chapter—
(1)
Treatment as ordinary income or loss
(A)
In general
Except as otherwise provided in this section, any foreign currency gain or loss attributable to a section
988 transaction shall be computed separately and treated as ordinary income or loss (as the case may be).
(B)
Special rule for forward contracts, etc.
Except as provided in regulations, a taxpayer may elect to treat any foreign currency gain or loss attributable to a forward contract, a futures contract, or option described in subsection (c)(1)(B)(iii) which is a capital asset in the hands of the taxpayer and which is not a part of a straddle (within the meaning of section
1092
(c), without regard to paragraph (4) thereof) as capital gain or loss (as the case may be) if the taxpayer makes such election and identifies such transaction before the close of the day on which such transaction is entered into (or such earlier time as the Secretary may prescribe).
(2)
Gain or loss treated as interest for certain purposes
To the extent provided in regulations, any amount treated as ordinary income or loss under paragraph (1) shall be treated as interest income or expense (as the case may be).
(3)
Source
(A)
In general
Except as otherwise provided in regulations, in the case of any amount treated as ordinary income or loss under paragraph (1) (without regard to paragraph (1)(B)), the source of such amount shall be determined by reference to the residence of the taxpayer or the qualified business unit of the taxpayer on whose books the asset, liability, or item of income or expense is properly reflected.
(B)
Residence
For purposes of this subpart—
(i)
In general
The residence of any person shall be—
(I)
in the case of an individual, the country in which such individual’s tax home (as defined in section
911
(d)(3)) is located,
(II)
in the case of any corporation, partnership, trust, or estate which is a United States person (as defined in section
7701
(a)(30)), the United States, and
(III)
in the case of any corporation, partnership, trust, or estate which is not a United States person, a country other than the United States.
If an individual does not have a tax home (as so defined), the residence of such individual shall be the United States if such individual is a United States citizen or a resident alien and shall be a country other than the United States if such individual is not a United States citizen or a resident alien.
(C)
Special rule for certain related party loans
Except to the extent provided in regulations, in the case of a loan by a United States person or a related person to a 10-percent owned foreign corporation which is denominated in a currency other than the dollar and bears interest at a rate at least 10 percentage points higher than the Federal mid-term rate (determined under section
1274
(d)) at the time such loan is entered into, the following rules shall apply:
(b)
Foreign currency gain or loss
For purposes of this section—
(1)
Foreign currency gain
The term “foreign currency gain” means any gain from a section
988 transaction to the extent such gain does not exceed gain realized by reason of changes in exchange rates on or after the booking date and before the payment date.
(2)
Foreign currency loss
The term “foreign currency loss” means any loss from a section
988 transaction to the extent such loss does not exceed the loss realized by reason of changes in exchange rates on or after the booking date and before the payment date.
(3)
Special rule for certain contracts, etc.
In the case of any section
988 transaction described in subsection (c)(1)(B)(iii), any gain or loss from such transaction shall be treated as foreign currency gain or loss (as the case may be).
(c)
Other definitions
For purposes of this section—
(1)
Section
988 transaction
(A)
In general
The term “section
988 transaction” means any transaction described in subparagraph (B) if the amount which the taxpayer is entitled to receive (or is required to pay) by reason of such transaction—
(B)
Description of transactions
For purposes of subparagraph (A), the following transactions are described in this subparagraph:
(ii)
Accruing (or otherwise taking into account) for purposes of this subtitle any item of expense or gross income or receipts which is to be paid or received after the date on which so accrued or taken into account.
(iii)
Entering into or acquiring any forward contract, futures contract, option, or similar financial instrument.
The Secretary may prescribe regulations excluding from the application of clause (ii) any class of items the taking into account of which is not necessary to carry out the purposes of this section by reason of the small amounts or short periods involved, or otherwise.
(C)
Special rules for disposition of nonfunctional currency
(D)
Exception for certain instruments marked to market
(i)
In general
Clause (iii) of subparagraph (B) shall not apply to any regulated futures contract or nonequity option which would be marked to market under section
1256 if held on the last day of the taxable year.
(ii)
Election out
(I)
In general
The taxpayer may elect to have clause (i) not apply to such taxpayer. Such an election shall apply to contracts held at any time during the taxable year for which such election is made or any succeeding taxable year unless such election is revoked with the consent of the Secretary.
(E)
Special rules for certain funds
(i)
In general
In the case of a qualified fund, clause (iii) of subparagraph (B) shall not apply to any instrument which would be marked to market under section
1256 if held on the last day of the taxable year (determined after the application of clause (iv)).
(ii)
Special rule where electing partnership does not qualify
If any partnership made an election under clause (iii)(V) for any taxable year and such partnership has a net loss for such year or any succeeding year from instruments referred to in clause (i), the rules of clauses (i) and (iv) shall apply to any such loss year whether or not such partnership is a qualified fund for such year.
(iii)
Qualified fund defined
For purposes of this subparagraph, the term “qualified fund” means any partnership if—
(I)
at all times during the taxable year (and during each preceding taxable year to which an election under subclause (V) applied), such partnership has at least 20 partners and no single partner owns more than 20 percent of the interests in the capital or profits of the partnership,
(II)
the principal activity of such partnership for such taxable year (and each such preceding taxable year) consists of buying and selling options, futures, or forwards with respect to commodities,
(III)
at least 90 percent of the gross income of the partnership for the taxable year (and for each such preceding taxable year) consisted of income or gains described in subparagraph (A), (B), or (G) of section
7704
(d)(1) or gain from the sale or disposition of capital assets held for the production of interest or dividends,
(IV)
no more than a de minimis amount of the gross income of the partnership for the taxable year (and each such preceding taxable year) was derived from buying and selling commodities, and
An election under subclause (V) for any taxable year shall be made on or before the 1st day of such taxable year (or, if later, on or before the 1st day during such year on which the partnership holds an instrument referred to in clause (i)). Any such election shall apply to the taxable year for which made and all succeeding taxable years unless revoked with the consent of the Secretary.
(iv)
Treatment of certain currency contracts
(I)
In general
Except as provided in regulations, in the case of a qualified fund, any bank forward contract, any foreign currency futures contract traded on a foreign exchange, or to the extent provided in regulations any similar instrument, which is not otherwise a section
1256 contract shall be treated as a section
1256 contract for purposes of section
1256.
(v)
Special rules for clause (iii)(I)
(I)
Certain general partners
The interest of a general partner in the partnership shall not be treated as failing to meet the 20-percent ownership requirements of clause (iii)(I) for any taxable year of the partnership if, for the taxable year of the partner in which such partnership taxable year ends, such partner (and each corporation filing a consolidated return with such partner) had no ordinary income or loss from a section
988 transaction which is foreign currency gain or loss (as the case may be).
(II)
Treatment of incentive compensation
For purposes of clause (iii)(I), any income allocable to a general partner as incentive compensation based on profits rather than capital shall not be taken into account in determining such partner’s interest in the profits of the partnership.
(III)
Treatment of tax-exempt partners
Except as provided in regulations, the interest of a partner in the partnership shall not be treated as failing to meet the 20-percent ownership requirements of clause (iii)(I) if none of the income of such partner from such partnership is subject to tax under this chapter (whether directly or through 1 or more pass-thru entities).
(IV)
Look-thru rule
In determining whether the requirements of clause (iii)(I) are met with respect to any partnership, except to the extent provided in regulations, any interest in such partnership held by another partnership shall be treated as held proportionately by the partners in such other partnership.
(vi)
Other special rules
For purposes of this subparagraph—
(I)
Related persons
Interests in the partnership held by persons related to each other (within the meaning of sections
267
(b) and
707
(b)) shall be treated as held by 1 person.
(II)
Predecessors
References to any partnership shall include a reference to any predecessor thereof.
(IV)
Treatment of certain debt instruments
For purposes of clause (iii)(IV), any debt instrument which is a section
988 transaction shall be treated as a commodity.
(2)
Booking date
The term “booking date” means—
(4)
Debt instrument
The term “debt instrument” means a bond, debenture, note, or certificate or other evidence of indebtedness. To the extent provided in regulations, such term shall include preferred stock.
(5)
Special rules where taxpayer takes or makes delivery
If the taxpayer takes or makes delivery in connection with any section
988 transaction described in paragraph (1)(B)(iii), any gain or loss (determined as if the taxpayer sold the contract, option, or instrument on the date on which he took or made delivery for its fair market value on such date) shall be recognized in the same manner as if such contract, option, or instrument were so sold.
(d)
Treatment of 988 hedging transactions
(1)
In general
To the extent provided in regulations, if any section
988 transaction is part of a 988 hedging transaction, all transactions which are part of such 988 hedging transaction shall be integrated and treated as a single transaction or otherwise treated consistently for purposes of this subtitle. For purposes of the preceding sentence, the determination of whether any transaction is a section
988 transaction shall be determined without regard to whether such transaction would otherwise be marked-to-market under section
475 or
1256 and such term shall not include any transaction with respect to which an election is made under subsection (a)(1)(B). Sections
475,
1092, and
1256 shall not apply to a transaction covered by this subsection.
(e)
Application to individuals
(1)
In general
The preceding provisions of this section shall not apply to any section
988 transaction entered into by an individual which is a personal transaction.
(2)
Exclusion for certain personal transactions
If—
no gain shall be recognized for purposes of this subtitle by reason of changes in exchange rates after such currency was acquired by such individual and before such disposition. The preceding sentence shall not apply if the gain which would otherwise be recognized on the transaction exceeds $200.