What is Section 1256?
In the tax world, Section 1256 contracts refer to a category of financial instruments that are subject to special tax treatment under the Internal Revenue Code (IRC) Section 1256. These contracts include:
Futures Contracts: Futures contracts are agreements to buy or sell a specified asset (such as commodities, currencies, or financial instruments) at a predetermined price on a future date. Investors trade them on organized exchanges such as the Chicago Mercantile Exchange (CME) or the Intercontinental Exchange (ICE).
Options Contracts: Options contracts give the holder the right, but not the obligation, to buy or sell an underlying asset at a predetermined price (the strike price) within a specified timeframe. Options can be traded on various assets, including stocks, indices, and commodities.
Under Section 1256 of the IRC, gains and losses from trading Section 1256 contracts are treated differently from other types of investments. Here are some key aspects of the tax treatment for Section 1256 contracts:
1. Mark-to-Market Accounting: Mark-to-market accounting features significantly in Section 1256 contracts. This means that at the end of each tax year, all open positions are treated as if they were sold for their fair market value. Afterwards, any resulting gains or losses are recognized for tax purposes. This applies even if the contracts are not actually sold during the tax year.
2. 60/40 Tax Treatment: Gains and losses from Section 1256 contracts are split into two categories. Overall, 60% of the gains or losses are treated as long-term capital gains or losses, and 40% are treated as short-term capital gains or losses. This 60/40 split applies regardless of the actual holding period of the contracts. This special tax treatment benefits traders by allowing for a potentially lower tax rate on a significant portion of their gains.
3. Lower Tax Rates: Both long-term and short-term gains from Section 1256 contracts are subject to favorable tax rates. For most taxpayers, long-term capital gains are taxed at lower rates than ordinary income, with rates ranging from 0% to 20%, depending on the taxpayer’s income level. Short-term gains from Section 1256 contracts are taxed at the taxpayer’s ordinary income tax rates.
4. No Wash Sale Rules: Unlike stocks and other securities, IRS wash sale rules do not apply to Section1256. This means that traders can realize losses on contracts and immediately repurchase the same or substantially identical contracts without triggering a wash sale disallowance.
5. Election Out of 1256 Treatment: It’s worth noting that traders have the option to “opt out” of Section 1256 treatment for certain contracts if they prefer to have them taxed under the general rules for capital gains and losses. However, this election must be made on a timely basis and applies to all similar contracts for that tax year.
Overall, Section 1256 contracts offer traders unique tax advantages. However, traders should consult with a tax advisor or accountant to ensure compliance with IRS regulations and to optimize their tax strategies based on their individual circumstances.