Title 26, Internal Revenue CodeRelease 119-110
§988 Treatment of Certain Foreign Currency Transactions
Title 26 › Subtitle A — Income Taxes › CHAPTER 1 — NORMAL TAXES AND SURTAXES › Subchapter N — Tax Based on Income From Sources Within or Without the United States › PART III — INCOME FROM SOURCES WITHOUT THE UNITED STATES › Subpart J — Foreign Currency Transactions › § 988
Summary
Treat gains and losses from certain deals that use foreign money mostly as ordinary income or ordinary loss, unless other rules apply. You can choose to treat gains or losses from some forward, futures, or option contracts as capital gains or losses if the contract is a capital asset, not part of a straddle, and you identify the contract before the end of the day you enter it (or earlier if the tax agency says so.); rules can also make amounts treated as ordinary be treated like interest for some tax purposes. Where the income is “sourced” (U.S. or foreign) is usually based on the taxpayer’s residence or the country of the business unit that records the item. Special rules apply to certain related-party loans to a foreign corporation you own at least 10 percent of voting stock: if the loan is in foreign currency and the interest rate is at least 10 percentage points above the Federal mid-term rate, the loan may be marked to market for foreign tax credit rules and some interest may be treated as U.S.-source. If transactions are part of a currency hedge, they are treated together. Individual personal transactions are generally excluded; selling foreign money in a personal deal has no tax from exchange gains unless the gain is more than $200. Key terms (one line each): section 988 transaction — a deal tied to a nonfunctional currency (debt, accruals, forwards/futures/options); booking date — date acquired or accrued; payment date — date paid or received; debt instrument — bond, note, etc.; nonfunctional currency — currency other than your functional currency (includes bank deposits); 10‑percent owned foreign corporation — foreign corp with ≥10% voting stock owned by a U.S. person; qualified fund — a partnership that meets partner-count, ownership, activity, and income tests (including at least 20 partners, no partner over 20%, and at least 90% certain income); 988 hedging transaction — deals entered to manage currency risk and identified as hedges; personal transaction — an individual deal not involving business or investment expenses.
Full Legal Text
Title 26, §988
Internal Revenue Code, Source: USLM XML via OLRC
(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.
(ii)Exception
In the case of a qualified business unit of any taxpayer (including an individual), the residence of such unit shall be the country in which the principal place of business of such qualified business unit is located.
(iii)Special rule for partnerships
To the extent provided in regulations, in the case of a partnership, the determination of residence shall be made at the partner level.
(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:
(i)For purposes of section 904 only, such loan shall be marked to market on an annual basis.
(ii)Any interest income earned with respect to such loan for the taxable year shall be treated as income from sources within the United States to the extent of any loss attributable to clause (i).
For purposes of this subparagraph, the term “related person” has the meaning given such term by section 954(d)(3), except that such section shall be applied by substituting “United States person” for “controlled foreign corporation” each place such term appears.
(D)10-percent owned foreign corporation
The term “10-percent owned foreign corporation” means any foreign corporation in which the United States person owns directly or indirectly at least 10 percent of the voting stock.
(b)Foreign currency gain or loss
For purposes of this section
(1) Foreign currency gain (2) Foreign currency loss
(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
(2)Booking date
The term “booking date” means—
(A)in the case of a transaction described in paragraph (1)(B)(i), the date of acquisition or on which the taxpayer becomes the obligor, or
(B)in the case of a transaction described in paragraph (1)(B)(ii), the date on which accrued or otherwise taken into account.
(3)Payment date
The term “payment date” means the date on which the payment is made or received.
(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). section 475, 1092, and 1256 shall not apply to a transaction covered by this subsection.
(2)988 hedging transaction
For purposes of paragraph (1), the term “988 hedging transaction” means any transaction—
(A)entered into by the taxpayer primarily—
(i)to manage risk of currency fluctuations with respect to property which is held or to be held by the taxpayer, or
(ii)to manage risk of currency fluctuations with respect to borrowings made or to be made, or obligations incurred or to be incurred, by the taxpayer, and
(B)identified by the Secretary or the taxpayer as being a 988 hedging transaction.
(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—
(A)nonfunctional currency is disposed of by an individual in any transaction, and
(B)such transaction is a personal transaction,
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.
(3)Personal transactions
For purposes of this subsection, the term “personal transaction” means 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— (A)
(B)section 212 (other than that part of section 212 dealing with expenses incurred in connection with taxes).
Legislative History
Notes & Related Subsidiaries
Editorial Notes
Amendments
1999—Subsec. (d)(2)(A)(i), (ii). Pub. L. 106–170 substituted “to manage” for “to reduce”. 1997—Subsec. (e). Pub. L. 105–34 amended heading and text of subsec. (e) generally. Prior to amendment, text read as follows: “This section shall apply to section 988 transactions entered into by an individual only to the extent expenses properly allocable to such transactions meet the requirements of section 162 or 212 (other than that part of section 212 dealing with expenses incurred in connection with taxes).” 1993—Subsec. (d)(1). Pub. L. 103–66 substituted “section 475 or 1256” for “section 1256” and “section 475, 1092, and 1256” for “section 1092 and 1256”. 1989—Subsec. (a). Pub. L. 101–239 inserted introductory provision “Notwithstanding any other provision of this chapter—”. 1988—Subsec. (a)(3)(B)(i). Pub. L. 100–647, § 1012(v)(8), inserted at end “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.” Subsec. (a)(3)(B)(iii). Pub. L. 100–647, § 1012(v)(7), added cl. (iii). Subsec. (b)(3). Pub. L. 100–647, § 1012(v)(3)(A), added par. (3). Subsec. (c)(1)(B)(iii). Pub. L. 100–647, § 6130(a), struck out “unless such instrument would be marked to market under section 1256 if held on the last day of the taxable year” after “similar financial instrument”. Pub. L. 100–647, § 1012(v)(6), amended cl. (iii) generally. Prior to amendment, cl. (iii) read as follows: “Entering into or acquiring any forward contract, futures contract, option, or similar financial instrument if such instrument is not marked to market at the close of the taxable year under section 1256.” Subsec. (c)(1)(C)(i)(II). Pub. L. 100–647, § 1012(v)(3)(B), amended subcl. (II) generally. Prior to amendment, subcl. (II) read as follows: “for purposes of determining the foreign currency gain or loss from such transaction, paragraphs (1) and (2) of subsection (b) shall be applied by substituting ‘acquisition date’ for ‘booking date’ and ‘disposition’ for ‘payment date’.” Subsec. (c)(1)(D), (E). Pub. L. 100–647, § 6130(b), added subpars. (D) and (E). Subsec. (c)(2)(C). Pub. L. 100–647, § 1012(v)(3)(C), struck out subpar. (C) which defined “booking date” in the case of a transaction described in par. (1)(B)(iii) as the date on which the position is entered into or acquired. Subsec. (c)(3). Pub. L. 100–647, § 1012(v)(3)(D), amended par. (3) generally. Prior to amendment, par. (3) read as follows: “The term ‘payment date’ means— “(A) in the case of a transaction described in paragraph (1)(B)(i) or (ii), the date on which payment is made or received, or “(B) in the case of a transaction described in paragraph (1)(B)(iii), the date payment is made or received or the date the taxpayer’s rights with respect to the position are terminated.” Subsec. (c)(5). Pub. L. 100–647, § 1012(v)(2)(A), added par. (5). Subsec. (d)(1). Pub. L. 100–647, § 1012(v)(4), substituted “this subtitle” for “this section”.
Statutory Notes and Related Subsidiaries
Effective Date
of 1999 AmendmentAmendment by Pub. L. 106–170 applicable to any instrument held, acquired, or entered into, any transaction entered into, and supplies held or acquired on or after Dec. 17, 1999, see section 532(d) of Pub. L. 106–170, set out as a note under section 170 of this title.
Effective Date
of 1997 Amendment Pub. L. 105–34, title XI, § 1104(b), Aug. 5, 1997, 111 Stat. 967, provided that: “The
Amendments
made by this section [amending this section] shall apply to taxable years beginning after December 31, 1997.”
Effective Date
of 1993 AmendmentAmendment by Pub. L. 103–66 applicable to all taxable years ending on or after Dec. 31, 1993, with special rules for taxpayers required to change accounting methods and for floor specialists and market makers, see section 13223(c) of Pub. L. 103–66, set out as an
Effective Date
note under section 475 of this title.
Effective Date
of 1989 AmendmentAmendment by Pub. L. 101–239 effective, except as otherwise provided, as if included in the provision of the Technical and Miscellaneous Revenue Act of 1988, Pub. L. 100–647, to which such amendment relates, see section 7817 of Pub. L. 101–239, set out as a note under section 1 of this title.
Effective Date
of 1988 Amendment Pub. L. 100–647, title I, § 1012(v)(2)(B), Nov. 10, 1988, 102 Stat. 3529, provided that: “The amendment made by subparagraph (A) [amending this section] shall not apply in any case in which the taxpayer takes or makes delivery before June 11, 1987.” Amendment by section 1012(v)(3), (4), (6)–(8) of Pub. L. 100–647 effective, except as otherwise provided, as if included in the provision of the Tax Reform Act of 1986, Pub. L. 99–514, to which such amendment relates, see section 1019(a) of Pub. L. 100–647, set out as a note under section 1 of this title. Pub. L. 100–647, title VI, § 6130(d), Nov. 10, 1988, 102 Stat. 3719, provided that: “(1) In general.—The
Amendments
made by this section [amending this section and section 1092 of this title] shall apply with respect to forward contracts, future contracts, options, and similar instruments entered into or acquired after
October 21, 1988. “(2) Time for making election.—The time for making any election under subparagraph (D) or (E) of section 988(c)(1) of the 1986 Code shall not expire before the date 30 days after the date of the enactment of this Act [Nov. 10, 1988]. “(3) Transitional rules.—“(A) The requirements of subclause (IV) of section 988(c)(1)(E)(iii) of the 1986 Code (as added by subsection (b)) shall not apply to periods before the date of the enactment of this Act. “(B) In the case of any partner in an existing partnership, the 20-percent ownership requirements of subclause (I) of such section 988(c)(1)(E)(iii) shall be treated as met during any period during which such partner does not own a percentage interest in the capital or profits of such partnership greater than 33⅓ percent (or, if lower, the lowest such percentage interest of such partner during any prior period after
October 21, 1988, during which such partnership is in existence). For purposes of the preceding sentence, the term ‘existing partnership’ means any partnership if—“(i) such partnership was in existence on
October 21, 1988, and principally engaged on such date in buying and selling options, futures, or forwards with respect to commodities, or “(ii) a registration statement was filed with respect to such partnership with the Securities and Exchange Commission on or before such date and such registration statement indicated that the principal activity of such partnership will consist of buying and selling instruments referred to in clause (i).”
Effective Date
Section applicable to taxable years beginning after Dec. 31, 1986, with certain exceptions and qualifications, see section 1261(e) of Pub. L. 99–514, set out as a note under section 985 of this title.
Reference
Citations & Metadata
Citation
26 U.S.C. § 988
Title 26, Internal Revenue Code
Last Updated
Sep 22, 2026
Release point: 119-110