Forex trading, commonly known as foreign exchange trading, involves the buying and selling of currencies in the global market.

The main goal for forex traders is to make successful trades and boost the balance of their forex accounts. In a market with rapid price movements, many traders want to make money in the short term without really considering the longer-term consequences. However, it usually makes some sense to consider the tax implications of buying and selling forex before making that first trade.

One principle that traders often encounter is the 60/40 rule. Forex futures and options are 1256 contracts and taxed using the 60/40 rule, with 60% of gains or losses treated as long-term capital gains and 40% as short-term. 1256 contracts are instruments that fall under an IRC section, which is a provision offered to taxpayers in the US.

In this comprehensive guide, we look at the complexities of the 60/40 rule in forex trading and explore its implications for traders’ tax obligations.

A man in glasses smiles while analyzing forex trading data on a screen.

The 60/40 Rule Explained

Forex options and futures contracts are considered IRC Section 1256 contracts for tax purposes. This means they are subject to a 60/40 tax consideration. In other words, 60% of gains or losses are counted as long-term capital gains or losses, and the remaining 40% is counted as short-term.

Individuals in higher income tax brackets often benefit from a 60/40 tax treatment. For instance, the proceeds from the sale of stocks within one year of their purchase are regarded as short-term capital gains and are always taxed at the same rate as the investor’s ordinary income, which can be a maximum of 37%. Investors are effectively taxed at the maximum long-term capital gains rate, set at 20% (applied to 60% of the gains or losses), and the maximum short-term capital gains rate of 37% (applicable to the remaining 40%).

Taxes for Over-the-Counter (OTC) Forex Traders

The majority of spot traders are taxed according to IRC Section 988 contracts, which are for foreign exchange transactions settled within two days. This allows for the transactions to be treated as ordinary losses and gains. If you trade spot forex, you are likely to be grouped in this category as a “988 trader.”

If you experience net losses through your year-end trading, being categorized as a “988 trader” holds substantial benefits. As in the 1256 contract category, you can consider all of your losses as “ordinary losses” without being restricted to the initial $3,000.

How Forex Spot Traders File Taxes

While options, futures, and OTC are grouped separately, the investor has the option to trade as either 1256 or 988. Individuals must decide which one to use by the first day of the calendar year.

IRC 988 contracts are less complex than IRC 1256 contracts. For both gains and losses, the tax rate remains constant, and it is better when the trader is reporting losses. Despite being more complex, 1256 contracts provide 12% more savings for a trader with net gains.

Most accounting firms use 988 contracts for spot traders, and they use 1256 contracts for futures traders. That’s why it’s important to consult your accountant before investing. You cannot switch between the two once you start trading.

Traders naturally expect net gains and often opt out of 988 status and into 1256 status. Opting out of a 988 status involves making an internal record in your books and filing the change with your accountant. It can get more complicated if you trade stocks and currencies, as equity transactions are taxed differently, making it more difficult to select 988 or 1256 contracts.

Image: A group of traders analyzing forex charts, aiming for success in making money through forex trading.

Record-Keeping for Forex Taxes

Although your brokerage statements are a reliable source, a more precise and tax-friendly way of keeping track of profit and loss is through your performance record.

This is a common formula used in forex record-keeping:

  • Subtract your beginning assets from your end assets (net)
  • Subtract cash deposits (to your accounts) and add withdrawals (from your accounts)
  • Subtract income from interest and add interest paid
  • Add in other trading expenses

The performance record formula will give you a more accurate representation of your profit/loss ratio and will make year-end filing easier for you and your accountant.

Special Considerations for Forex Tax

Regarding forex taxation, there are a few practices you can adopt that will keep you in good standing with the IRS:

Mind the deadline

In most cases, you are required to select a type of tax situation by January 1. If you are a new trader, you can make this decision at any point before your first trade.

Maintain accurate records

You will save time when tax season rolls around. As a result, you will have more time to trade and less time to prepare your taxes.

Pay what you owe

Some traders try to take advantage of the system by not paying taxes on their forex trades. They think they can avoid it, as over-the-counter trading is not registered with the Commodities Futures Trading Commission (CFTC). You should be aware that the IRS will eventually catch up on you and that the penalties for tax evasion will be greater than any taxes you owe.

A detailed view of a stock market display showing fluctuating numbers, representing traders achieving success in the forex market.

Final Thoughts

Whether you’re considering a forex career or simply exploring the market, taking the time to file correctly can save you hundreds, if not thousands, of dollars in taxes. Taking the time to understand tax implications, choosing the right contract type, and maintaining meticulous records can make a significant difference, potentially saving traders hundreds or even thousands of dollars. The investment of time in this important aspect of the trading process is worthwhile.

Note that the tax laws for forex trading are complex and vary from country to country. Familiarizing yourself with the rules in your jurisdiction is crucial. While some of your losses in forex trading can be deducted, you must keep careful records. In most cases, if you trade through a company rather than as an individual, your company will be liable for corporation tax on its forex trading profits, emphasizing the importance of staying informed about tax regulations.

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