U.S. Taxation of Foreign Currency Gains or Losses

The general rule with regard to the U.S. tax treatment of gains or losses from exchanging U.S. currency for non U.S. currency (and back) is that the gain or loss on the currency exchange will now be taxed the same as the underlying transaction. The Taxpayer’s Relief Act of 1997 included a provision [Act Section 1104(a)] that included some changes, which are included in the following explanation.


Where there are currency gains or losses in connection with a trade or business or with the management or administration of investment assets, the gain is treated as an ordinary gain (rather than as a capital gain) and any loss is generally treated as an expense.


Where currency gains or losses are incurred in connection with the purchase of an investment, the gain or loss on the currency change on realization (usually from selling) is a capital gain or loss and is included as part of the total capital gain or loss on the investment.


Currency gains of $200 or less that arise from personal transactions (not for investment or business) are not taxable, but any personal currency losses are not deductible. A personal transaction includes any gain or loss arising from travel even if the travel is business related. Any currency gains in excess of $200 per transaction (per trip or per purchase) are treated as a capital gain. Losses on currency exchanges for business travel also appear to be non-deductible.

The primary source of information on the tax treatment of currency gains or losses is IRC Section 988.


Tax Treatment from Various Situations

A number of my subscribers have presented me with the question of whether certain gains and losses on foreign investments are capital gains and losses and whether any net gains would be eligible for the 15% maximum tax on long term capital gains, if the holding period requirements are satisfied.


To answer this question, it’s necessary to differentiate between different methods of acquiring an investment position in a foreign investment. The following is a non-technical interpretation of the rules in each of these situations.


1. The investor may purchase a foreign currency in exchange for U.S. dollars and hold the foreign currency as a capital asset. Any gain or loss would be a capital gain or loss.


2. The investor may purchase an indirect position in a foreign currency through the purchase of futures contracts, forward contracts, options or similar instruments, but the purchase is denominated in US dollars. Any gain on an unhedged position would be a capital gain or loss. Where the position involves the use of a hedge that meets the definition of a “straddle’ transaction under IRC 1092, the unrealized gain or loss would be recognized as of the end of the tax year.


3. The investor may acquire a debt obligation denominated in a foreign currency. Unless the debt obligation is acquired in connection with a trade or business or an activity constituting the management of investments, any gain or loss will be treated as a capital gain or loss – subject to the provisions of the original issue discount rules. If the debt obligation is acquired in connection with a trade or business or arises from the management of investments (IRC 212) any gain or loss attributable to the conversion of the debt obligation into US dollars would be ordinary income or loss.


4. The investor may acquire an interest in foreign currencies through a trade or business (partnership or proprietorship) conducted in a foreign currency. To the extent that such interests are denominated in a non-functional (foreign) currency, any gain or loss on conversion of the currency to the US dollar would be an ordinary gain or loss.


5. The investor may purchase foreign stocks of publicly held operating corporations with U.S. dollars but the stocks are denominated in a foreign currency. Thus, part of the gain or loss on the foreign stock is derived from the change in currency values while holding the stock and part of the gain or loss is derived from changes in the dollar value of the underlying stock itself. To the extent that the stocks are purchased as investments, the entire gain or loss would be a capital gain or loss – subject to the CFC and PFIC rules.


To the extent that any investments in the form of currencies or debt obligations are acquired in connection with the operation of a trade or business (or in connection with expenses incurred in the management of investments) and are denominated in a foreign currency, any gains or losses arising from conversion of the investments or debt obligations back to the US dollar would be ordinary gains or losses.


6. The investor may purchase the shares of a controlled foreign corporation (CFC) and may be (A) an investor with less than a 10% interest in the corporation or may be (B) an investor with an interest of 10% or more of the controlled foreign corporation’s stock.


Assuming the CFC is not also a PFIC (see below), the investor who owns less than a 10% interest in the CFC would not be subject to tax on the current income of the corporation. Any distributions from the CFC would be taxed as dividends. Any gain or loss on the sale of the stock in the CFC would be a capital gain or loss.


If the shareholder in the CFC owns 10% or more of the stock of the CFC, then that shareholder must report as current income, his or her pro-rata share of the “sub-part F” income of the CFC. Generally, that would include any passive investment income and certain other kinds of income as defined in IRC sections 951 through 954. Generally, “sub-part F income” does not include income from the operation of a business outside the US. If the foreign corporation has any US source income from doing business in the US, it will be required to file a tax return and pay corporate income taxes on that US source income. That income is therefore not treated as “sub-part F income” that is subject to inclusion in the tax returns of the US shareholders of the CFC.


7. The investor may purchase shares of a passive foreign investment company (mutual fund), which may be (A) a “qualified electing fund” or (B) a non-qualified fund.


For a qualified electing fund, the taxpayer will report his or her share of the current income of the PFIC in a manner similar to the shareholders of a US mutual fund.


If the PFIC is not a qualified electing fund, the US shareholder will be taxed on any distributions from the fund when they are received. Distributions of current earnings of the PFIC will be taxed at the shareholder’s regular tax rates. Distributions of accumulated income of the PFIC from previous years will be subject to tax at the highest ordinary income tax rate – which is presently 36%. (It’s not clear whether the 10-% surtax for taxable income in excess of $250,000 is also applicable to such distributions.) In addition, the shareholder will be required to pay interest on the deferred distribution.


Source:  By Vernon K. Jacobs, 2008 – The Offshore Press