I am the tax attorney at Green & Company, Bob Green’s CPA firm. We have blogged about Section 988 and forex in general. See our forex discussions at
FOREX TAX TREATMENT
Execconsult commented that it’s not clear whether an individual who holds dinars for investment is subject to Section 988 or capital gains rules. The issue that Execconsult is referring to is how to apply Section 988(e), which provides that “personal transactions” are not subject to 988. Section 988(e)(3) defines a “personal transaction” to mean any transaction entered into by an individual, “except that such term shall not include any transaction to the extent that expenses properly allocable to such transaction meet the requirements of” Section 162 (business expenses) or Section 212 (expenses for the production of income). What is unclear is whether (1) the taxpayer must actually have such expenses, or (2) is it enough that if the taxpayer had such expenses, they would qualify for 162 or 212?
Tax attorneys look not only to the language of the Internal Revenue Code but also to the theory behind the Code. It is clear from the Congressional Reports issued at the time that this rule was adopted that option #2 is correct.
The legislative history (Committee Reports to ’86 TRA, , PL 99-514) states:
“Section 988 applies to transactions entered into by an individual only to the extent that expenses attributable to such transactions would be deductible under section 162 (as a trade or business expense) or section 212 (as an expense of producing income, other than expenses incurred in connection with the determination, collection or refund of taxes). Thus, for example, section 988 is inapplicable to exchange gain or loss recognized by a U.S. individual resident abroad upon repayment of a foreign currency denominated mortgage on the individual’s principal residence. The principles of current law would continue to apply to such transaction.”
“Would be deductible”—-not “are deductible”. It is enough that theoretically, if such expenses were incurred, they would be deductible.
This also makes sense from the point of view of tax theory. The point of this rule is not to create an arbitrary link to deductions, but to say that if the taxpayer is involved in Section 162 or 212 types of activities, this is not a personal transaction but a business transaction.