Navigating Section 988 Foreign Currency Transaction Reporting Rules - PowerPoint PPT Presentation

FOR LIVE PROGRAM ONLY Navigating Section 988 Foreign Currency Transaction Reporting Rules for Options, Straddles and Hedges Navigating Section 988 Foreign Currency Transaction Reporting Rules for Options, Straddles and Hedges TUESDAY , SEPTEMBER 20, 2016, 1:00-2:50 pm Eastern IMPORTANT INFORMATION FOR THE LIVE PROGRAM This program is approved for 2 CPE credit hours . To earn credit you must: • Participate in the program on your own computer connection (no sharing) – if you need to register additional people, please call customer service at 1-800-926-7926 x10 (or 404-881-1141 x10). Strafford accepts American Express, Visa, MasterCard, Discover . Listen on-line via your computer speakers. • • Respond to five prompts during the program plus a single verification code . You will have to write down only the final verification code on the attestation form, which will be emailed to registered attendees. To earn full credit, you must remain connected for the entire program. • WHO TO CONTACT DURING THE LIVE EVENT For Additional Registrations : -Call Strafford Customer Service 1-800-926-7926 x10 (or 404-881-1141 x10) For Assistance During the Live Program : -On the web, use the chat box at the bottom left of the screen If you get disconnected during the program, you can simply log in using your original instructions and PIN.

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Navigating Section 988 Foreign Currency Transaction Reporting Rules Sept. 20, 2016 Armin Gray, Managing Partner Gray Tolub, New York agray@graytolub.com Dr. Dean Smith, Partner Cadesky Tax, Toronto dsmith@cadesky.com

Notice ANY TAX ADVICE IN THIS COMMUNICATION IS NOT INTENDED OR WRITTEN BY THE SPEAKERS’ FIRMS TO BE USED, AND CANNOT BE USED, BY A CLIENT OR ANY OTHER PERSON OR ENTITY FOR THE PURPOSE OF (i) AVOIDING PENALTIES THAT MAY BE IMPOSED ON ANY TAXPAYER OR (ii) PROMOTING, MARKETING OR RECOMMENDING TO ANOTHER PARTY ANY MATTERS ADDRESSED HEREIN. You (and your employees, representatives, or agents) may disclose to any and all persons, without limitation, the tax treatment or tax structure, or both, of any transaction described in the associated materials we provide to you, including, but not limited to, any tax opinions, memoranda, or other tax analyses contained in those materials. The information contained herein is of a general nature and based on authorities that are subject to change. Applicability of the information to specific situations should be determined through consultation with your tax adviser.

Armin Gray Dean T. Smith Gray Tolub LLP Cadesky Tax agray@graytolub.com dsmith@cadesky.com (646) 455-1055 (416) 644-1182 GRAY TOLUB LLP Focusin g on Domest ic & Internat io nal Taxatio n, Real Estate, Corporat e, and Trust and Estate Matters. 5

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 Subchapter J introduced as part of The Tax Reform Act of 1986 (P.L. 99-514)  Encompasses sections §§985-989  Prior to current law, no comprehensive set of rules governed the U.S. treatment of foreign currency transactions or foreign currency translation. 7

Three part structure Rules for determining functional currency Taxation of foreign currency transactions (IRC §988) • Timing • Amount • Character, and • Source of exchange gain or loss Foreign currency translation 8

 Defined in IRC §985(b)(1) as (A) except as provided in subparagraph (B), the U.S. dollar ( this is the general rule ), or (B) in the case of a qualified business unit (QBU), the currency of the economic environment in which a significant part of such activities are conducted and which is used by such unit in keeping its books and records. 9

 Includes coin or currency, and nonfunctional currency denominated demand or time deposits or similar instruments issued by a bank of other financial institution  Disposition treated as a §988 transaction  Any gain or loss, from such transaction, shall be treated as foreign currency gain or loss 10

1) Operations not treated as a QBU ( would appear to apply to individuals only ) 2) Operations primarily conducted in U.S. dollars 3) Residence of a QBU is the United States 4) Currencies of books and records and economic environment are different 5) Effectively connected income or loss 6) Hyperinflationary currency 11

 The taxpayer may elect to the use the U.S. dollar as the functional currency for any qualified business unit if (A) such unit keeps its books and records in dollars, or (B) the taxpayer uses a method of accounting that approximates a separate transaction method(i.e., DASTM) 12

 IRC §898 Taxable year of certain foreign corporations (i.e., CFCs)  In general, the required year is  The majority U.S. Shareholder, or  If there is no majority shareholder, the taxable year prescribed under regulations  1-month deferral allowed  Why relevant? – Tax year provides for appropriate exchange rate 13

 Means (IRC §989(b)) (1) In the case of an actual distribution of E&P, the spot rate on the date such distribution is included in income, (2) In the case of an actual or deemed sale or exchange of stock in a foreign corporation treated as a dividends under IRC §1248, the spot rate on the date the deemed dividend is included in income, 14

(3) In the case of any amounts included in income under section 951(a)(1)(A) ( subpart F ) or 1293(a) ( QEF inclusion of a PFIC ), the average exchange rate for the taxable year of the foreign corporation, or (4) In the case of any other qualified business unit of a taxpayer, the average exchange rate for the taxable year of such qualified business unit. 15

 What is a QBU?  Defined in IRC §988(a) as  “Any separate and clearly identified unit of a trade or business of a taxpayer” if that unit  “Maintains separate books and records” 16

 Trade or business determination based on a facts and circumstances test  Generally – if a specified unified group of activities constitutes an independent economic enterprise carried on for profit.  Are the expenses deductible under IRC §162 or under §212 (without regard to §212(3))  Activities merely “ancillary to a trade or business” will not constitute a QBU 17

 Separate Books and Records Requirement 18

 Corporations are QBUs regardless of the nature or scope of its activities and regardless of whether it maintains separate books and records.  Each QBU has a “home office” QBU in addition to other corporate activities that may qualify as separate QBUs. 19

 A partnership, trust or estate also constitutes a QBU of each partner or beneficiary regardless of the nature and scope of the activities of the partnership, trust or estate and regardless of whether separate books and records are maintained. 20

 In addition to the above QBU status, the regulations provide that certain activities of a corporation (foreign branch), partnership, trust, estate or individual may qualify as a separate QBU. 21

 Deals with certain transactions which lend themselves to analysis under the separate transaction approach in determining currency gain or loss  Gain or loss is ordinary NOT capital  Gain or loss is sourced to the residence of the taxpayer (usually their tax home) 22

Means any transaction, in §988(c)(1)(B), if the amount which the taxpayer is entitled to receive (or is required to pay) by reason of such transaction (c)(1)(A)(i) is denominated in terms of a nonfunctional currency , or (c)(1)(A)(ii) is determined by reference to the value of 1 or more nonfunctional currencies . 23

The disposition of nonfunctional currency i. (considered as property) The acquisition of a debt instrument of becoming ii. the obligor under a debt instrument iii. Accruing...any item of expense or gross income or receipts which is to be paid or received after the date on which accrued... Entering into or acquiring any forward contract, iv. futures contract, option of similar financial instrument. 24

 Nonfunctional currency denominated equity investment, including all common stock, and unless provided otherwise in the regulations, preferred stock;  Certain derivative contracts such as regulated futures contracts;  Straddles;  Non-integrated executory contracts; and  Nonfunctional currency denominated transactions entered into by an individual unless the expenses attributable would be deductible under §162 or §212. See Personal Transactions discussion, below. 25

 In order to determine the tax consequences of FX transactions subject to Section 988, you must first classify the financial instrument.  Is it debt? What kind of debt instrument? Fixed? VRDI? CPDI?  Is it equity?  Is it a forward contract?  It it a futures contract?  Is it a foreign currency contract (as defined under section 1256)?  Is it a regulated futures contract?  Is it an options contract?  Is it a currency swap or other notional principal contract?  Is it another type of derivative financial instrument?  Classification issues can be very tricky for FX linked instruments. 26