The Internal Revenue Code (IRC) is complex (and the rules dealing with foreign currency trading are even more complex), the sections must be read in the context of the entire Code and the court decisions that interpret it. Each individual’s tax situation is different and one situation should not be used as guidance for another situation. At a minimum, please do not be misled by any false interpretations of the IRC. When you are applying rulings and procedures to an individual’s tax situation, the effect of subsequent legislation, regulations, court decisions, rulings and procedures must be considered. In addition, all parties are cautioned against reaching the same conclusions in their tax situation as in other cases unless the facts and circumstances are substantially the same. The following answers are general in nature and may not fit each individual’s situation. Always consult a qualified tax advisor for your individual tax situation.
1. Is buying currency as an investment taxed in a different manner than buying say stock and selling it for a profit?
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 currency exchange will be taxed the same as the underlying transaction. The Taxpayer's Relief Act of 1997 included a provision [Act Section 1104(a)] that included additional guidance and restrictions, which are explained next.
If 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 ordinary loss.
When currency gains or losses are incurred in connection with the purchase of an investment, the gain or loss on the currency exchange (at the time of the exchange) 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 per transaction that occur from personal exchanges (not for investment or business) are not taxable, but then any personal currency losses are not deductible. This generally occurs during an individual’s personal foreign travel currency exchanges. If the gain is in excess of $200 per transaction, then it is treated as a capital gain.
The primary source of information on the tax treatment of currency gains or losses is the IRC §988. Section 988 was written to allow taxation of income from companies that profit from the fluctuations in foreign currency exchange rates in their normal course of business.
If you are a currency trader (in the business of trading currency), you have options on the taxation of currency gains and losses. In reality these options, can prove to be very beneficial for U. S. individual tax purposes. There is an election under IRC §988(a)(1)(B) which allows you to convert otherwise ordinary currency gains or losses to capital gains or losses. This can be a trap for the individual currency trader. If you have losses you may not want to make the IRC §988 election, that way you can keep the ordinary loss treatment to offset your other ordinary income. If you make the IRC §988 election, then you fall under IRC §1256. If you decide to make the election found in IRC §988, you must attach the written election to your U.S. Individual Income Tax Return. In addition, according to U.S. Treasury Regulations §1.988-3(b)(4) you must attach to the return the five items requested in this regulation. This regulation is very clear that the election is on a per trade basis.
When you opt to use IRC §1256, you report 40% of your capital gains or losses as short term and 60% of your capital gains or losses as long term. If you make this election for currency exchanges you will need to learn about IRC §1256 contracts, Form 6781, special Form 6781 loss carry backs, and more about IRC §988. I would strongly suggest that you consult a qualified tax advisor.
Per IRC §988(c)(1)(C), individuals in the U. S. should treat foreign currency as though it is property (for tax purposes) and not as if it is money. The individual also needs to use the U. S. dollar as their functional currency as per IRC §985(b). Therefore, when a U.S. individual buys or sells foreign currency it as treated as if he or she is buying or selling property. When the individual treats the foreign currency as property, then an exchange of foreign currency is taxable just like the sale of any other property. Under our current tax code, if an individual sells or exchanges foreign currency for another asset, they will recognize a gain or loss on the foreign currency.
2. Does currency have a flat tax?
3. We have an LLC but have never funded. What are the tax implications of putting currency in LLC now vs. waiting?
If you were to transfer the currency into a LLC there is no tax event at that time. But, if the LLC is used for management or administration of investment assets then it is considered in the business of exchanging currency, making the currency a business asset and the gain will be treated as ordinary income. Please note, there can be no accurate answer to this question without knowing the individual’s plan for the use of the funds and the language of the operating agreement for the LLC.
4. Should I move my currency into an entity now or wait until it revalues and then move it into an entity?
Any asset transferred into an entity retains the transferor’s basis and does not reflect the current fair market value. Therefore, if you transfer it now or wait does not matter. Until there is a tax event (sale or exchange of the currency), you still have the transferor’s basis in the currency. More importantly than when the transfer takes place, is determining the purpose of the LLC and the terms of the operating agreement.
5. If I have owned my currency for more than a year will it be considered long term capital gains?
The answer here is possibly yes. But, if you are in the business of currency investing then it is business income or ordinary income. This is covered by IRC S§988. See above.
6. If I have owned my currency less than 1 year will I be taxed as ordinary income?
Possibly, but if you are a currency trader and make the IRC §1256 election then part will be ordinary income and part will be capital gain. See above.
7. If I buy currency today and transfer it to my LLC will that change my tax liability?
It could change the nature of the transaction. We would again need to refer to the intent or business purpose of the LLC and the terms of the operating agreement.
8. Explain the difference between a tax event and a tax liability.
A tax event in general (with regards to currency) means that you have sold or exchanged your investment in the currency you purchased.
A tax liability is the amount of tax owed as a result of the tax event. Depending on your total tax situation, you may or may not actually owe taxes (or have a tax liability).
9. If I buy currency today...transfer it to my LLC and the currency is then revalued higher than what I bought it...when is the taxable event? When it revalues or when I take it and exchange it for USD? Could I hold on to the currency in my LLC until it has been over 1 year so I will be taxed long term?
The taxable event is when you sell or exchange the currency, not when it is transferred into the LLC and not when it revalues at a higher amount. The question concerning keeping the currency in an LLC depends on the reason for the LLC. See answer the question to number 1.
10. In the same situation as question 7 above...could I take a loan against my currency after it has revalued so I can have cash in hand but not exchange my currency until it has been a year? If so how it that taxed?
The answer again depends on the business purpose of the LLC and the terminology of the operating agreement. If you are using the revalued currency as equity for a bank loan then it appears to be a business asset and it could be ordinary income when sold. If you did not place the currency into an LLC, then you would be trying to get a loan based on the current value of the currency much the same as if you were using stock in a company. It is difficult to answer this question without knowing more about the individual tax situation.
11. As far as taxes are concerned what it the best way to own and hold currencies that have the potential to revalue at a much higher rate? 1. Hold it personally. 2. Hold in Corp like LLC or 3. Hold in some sort of a trust?
This question is hard to answer because there are too many variables.
First, if you hold the currency personally then it is much like owning any type of investment. It is similar to holding stock in a company such as Ford Motor. If you hold the currency personally, then it would be short or long term gain (depending on the time held) to the individual who owns the currency and sells it.
Second, if you are putting the currency into a corporation (either C or S) then it appears you are a currency trader and in the business of currency trading. You would fall under IRC §988 unless you have made the election and then you would fall under IRC §1256. See answer above for more information.
Third, I do not think a trust would really work that well. It would also depend on the type of trust. Any time you start using a trust for business or as a piggy bank you could have problems with the IRS. You would need to review your need for a trust with a trust tax lawyer. Another item to consider is that generally losses in a trust are retained in the trust and do not pass through to the beneficiaries until the termination of the trust.
12. I can’t afford to create an entity until my currency revalues. When it does revalue what is the best strategy to minimize taxes.
If you are not a currency trader then the best answer to your question is to hold the investment long term so that it is taxed as a long term capital gain. But without knowing your personal tax situation this is just general advice and may or may not meet your individual tax needs. There are a great many things an individual can do within the Code to develop strategies to help them minimize their taxes. A United States Supreme Court Justice stated, “The legal right of a taxpayer to decrease the amount of what otherwise would be his taxes, or altogether avoid them, by means which the law permits, cannot be doubted.” Gregory v. Helvering, 293 U.S. 465, 469 (1935)
13. Looking to set up something overseas. What is the best way to do so and avoid tax and legal issues?
First, I am not a lawyer and do not give legal advice at any time or in any matter.
This question is too complex for a short answer. If you are doing business overseas then there are several types of business entities that you could use depending on the type of business you are setting up. There are also tax treaties with foreign countries that make the question even more complex. There are a number of questions that would need to be answered before an accurate answer can be given. Such as, “What country are you doing business in?”, “Do they have a tax treaty with the U. S.?”, “Will you set up the company in the U. S. or in the foreign country?”, and so on.
There is one item that you should be aware of. If you earn income in another country, as an American citizen, you are required to report that income on your tax return. You may or may not pay taxes on the income depending on your personal tax situation. Please note that you may also be required to file a Form TD F 90-22.1 annually if you have an interest in or a signature or other authority over a financial account in a foreign country.
There may also be problems with bringing large sums of money into the United States. Banks are required to report currency transactions to several federal agencies such as, the IRS, the DEA, the FBI and the DHS.
On July 14, 2011 the Treasury Department and the Internal Revenue Service issued a notice announcing plans to phase in the requirements of the Foreign Account Tax Compliance Act (FATCA). The new law targets noncompliance by U.S. taxpayers through foreign accounts. FATCA requires foreign financial institutions to report to the IRS information about financial accounts held by U.S. taxpayers, or by foreign entities in which U.S. taxpayers hold a substantial ownership interest. The new law will be phased in by 2014. (IRS Notice 2011-53)
14. Is it possible for the President to change the current tax code on currency investments without going through Congress?
United States Federal tax law begins with the Internal Revenue Code (IRC), enacted by Congress in Title 26 of the United States Code (26 U. S. C.).
The Senate and the House of Representatives must pass a bill (a new law) that would then either be signed or vetoed by the President. The President can ONLY approve or veto bills that have been passed in Congress and then if signed they become law. Then the United States Supreme Court has the right to review the new law and approve it or overturn it as unconstitutional. The President has no power to make any new laws under the Constitution.
IMPORTANT DISCLAIMER: The answers and comments provided here are general information, and are not intended to substitute for informed professional tax, investment, accounting or other professional advice.