§ 1258. Recharacterization of gain from certain financial transactions

1,068 words·~5 min read·/usc/title-26/section-1258

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(a)General rule In the case of any gain—

(1)which (but for this section) would be treated as gain from the sale or exchange of a capital asset, and

(2)which is recognized on the disposition or other termination of any position which was held as part of a conversion transaction,

such gain (to the extent such gain does not exceed the applicable imputed income amount) shall be treated as ordinary income.

(b)Applicable imputed income amount For purposes of subsection (a), the term “applicable imputed income amount” means, with respect to any disposition or other termination referred to in subsection (a), an amount equal to—

(1)the amount of interest which would have accrued on the taxpayer’s net investment in the conversion transaction for the period ending on the date of such disposition or other termination (or, if earlier, the date on which the requirements of subsection

(c)ceased to be satisfied) at a rate equal to 120 percent of the applicable rate, reduced by

(2)the amount treated as ordinary income under subsection

(a)with respect to any prior disposition or other termination of a position which was held as a part of such transaction.

The Secretary shall by regulations provide for such reductions in the applicable imputed income amount as may be appropriate by reason of amounts capitalized under section 263(g), ordinary income received, or otherwise.

(c)Conversion transaction For purposes of this section, the term “conversion transaction” means any transaction—

(1)substantially all of the taxpayer’s expected return from which is attributable to the time value of the taxpayer’s net investment in such transaction, and

(2)which is—

(A)the holding of any property (whether or not actively traded), and the entering into a contract to sell such property (or substantially identical property) at a price determined in accordance with such contract, but only if such property was acquired and such contract was entered into on a substantially contemporaneous basis,

(B)an applicable straddle,

(C)any other transaction which is marketed or sold as producing capital gains from a transaction described in paragraph (1), or

(D)any other transaction specified in regulations prescribed by the Secretary.

(d)Definitions and special rules For purposes of this section—

(1)Applicable straddle The term “applicable straddle” means any straddle (within the meaning of section 1092(c)).

(2)Applicable rate The term “applicable rate” means—

(A)the applicable Federal rate determined under section 1274(d) (compounded semiannually) as if the conversion transaction were a debt instrument, or

(B)if the term of the conversion transaction is indefinite, the Federal short-term rates in effect under section 6621(b) during the period of the conversion transaction (compounded daily).

(3)Treatment of built-in losses

(A)In general If any position with a built-in loss becomes part of a conversion transaction—

(i)for purposes of applying this subtitle to such position for periods after such position becomes part of such transaction, such position shall be taken into account at its fair market value as of the time it became part of such transaction, except that

(ii)upon the disposition or other termination of such position in a transaction in which gain or loss is recognized, such built-in loss shall be recognized and shall have a character determined without regard to this section.

(B)Built-in loss For purposes of subparagraph (A), the term “built-in loss” means the loss (if any) which would have been realized if the position had been disposed of or otherwise terminated at its fair market value as of the time such position became part of the conversion transaction.

(4)Position taken into account at fair market value In determining the taxpayer’s net investment in any conversion transaction, there shall be included the fair market value of any position which becomes part of such transaction (determined as of the time such position became part of such transaction).

(5)Special rule for options dealers and commodities traders

(A)In general Subsection

(a)shall not apply to transactions—

(i)of an options dealer in the normal course of the dealer’s trade or business of dealing in options, or

(ii)of a commodities trader in the normal course of the trader’s trade or business of trading section 1256 contracts.

(B)Definitions For purposes of this paragraph—

(i)Options dealer The term “options dealer” has the meaning given such term by section 1256(g)(8).

(ii)Commodities trader The term “commodities trader” means any person who is a member (or, except as otherwise provided in regulations, is entitled to trade as a member) of a domestic board of trade which is designated as a contract market by the Commodity Futures Trading Commission.

(C)Limited partners and limited entrepreneurs In the case of any gain from a transaction recognized by an entity which is allocable to a limited partner or limited entrepreneur (within the meaning of section 461(k)(4)), subparagraph

(A)shall not apply if—

(i)substantially all of the limited partner’s (or limited entrepreneur’s) expected return from the entity is attributable to the time value of the partner’s (or entrepreneur’s) net investment in such entity,

(ii)the transaction (or the interest in the entity) was marketed or sold as producing capital gains treatment from a transaction described in subsection (c)(1), or

(iii)the transaction (or the interest in the entity) is a transaction (or interest) specified in regulations prescribed by the Secretary.

(Added Pub. L. 103–66, title XIII, § 13206(a)(1), Aug. 10, 1993, 107 Stat. 462; amended Pub. L. 108–357, title VIII, § 888(c)(2), Oct. 22, 2004, 118 Stat. 1643; Pub. L. 115–141, div. U, title IV, § 401(a)(176)(B), Mar. 23, 2018, 132 Stat. 1192.)

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