Modernization of tax treatment of certain derivatives

(a) In General Subchapter E of chapter 1 is amended by adding at the end the following new part: IV Tax treatment of derivatives and similar contracts Subpart A. Derivatives Subpart B. Similar contracts A Derivatives Sec. 491. Rules for treatment of derivatives. Sec. 492. Investment hedging units. Sec. 493. Derivative defined. 491. Rules for treatment of derivatives (a) In general For purposes of this title, if there is a taxable event with respect to a derivative or an underlying investment— (1) notwithstanding any other provision of this title, except as provided in subsection (b)(3)(A) or section 1032, gain or loss shall be recognized and taken into account in the taxable year in which the taxable event occurs, and (2) proper adjustment shall be made in the amount of any subsequent gain or loss for gain or loss taken into account by reason of paragraph (1). (b) Rules relating to gain or loss Notwithstanding any other provision of this title— (1) Character and source of gain or loss (A) Character Except as provided in paragraph (3)(A), any item of income, deduction, gain, or loss taken into account under subsection (a) with respect to a taxable event shall be treated as— (i) ordinary income or loss, and (ii) attributable to a trade or business of the taxpayer for purposes of sections 62(a) and 172(d)(4). (B) Source of gain or loss from derivatives In the case of a taxable event with respect to a derivative, any item of income, deduction, gain, or loss taken into account under subsection (a) shall be treated as derived from sources within the country of residence, incorporation, or organization of the taxpayer. (2) Determination of amount (A) In general The amount of gain or loss taken into account under subsection (a) with respect to a taxable event shall be— (i) in the case of a taxable event involving the termination or transfer of a derivative or the sale or exchange of an underlying investment, the amount of gain or loss determined under this title with respect to the taxable event, or (ii) in the case of any other taxable event, the amount of gain or loss which would be determined under this title if, immediately before the taxable event— (I) in the case of a derivative, the derivative were terminated or transferred at its fair market value, or (II) in the case of an underlying investment, the investment were sold or exchanged at its fair market value. (B) Reliance on valuation For purposes of subparagraph (A), the taxpayer may rely on a valuation which is— (i) provided to the taxpayer by a broker under section 6045(b), or (ii) determined under an applicable financial statement. (3) Special rules for taxable events with respect to investment hedging units (A) In general In the case of a taxable event described in subsection (c)(2) with respect to a derivative or underlying investment (other than a termination or transfer of the derivative or the sale or exchange of the underlying investment)— (i) notwithstanding subsection (a), built-in loss (if any) with respect to the derivative or underlying investment shall not be recognized and shall not be taken into account by reason of such taxable event, and (ii) notwithstanding paragraph (1), built-in gain (if any) with respect to the underlying investment shall be treated as long-term or short-term capital gain if the built-in gain would have been so treated if the investment were sold or exchanged at its fair market value immediately before the time that the built-in gain is determined under subparagraph (D). (B) Identification For purposes of this paragraph, the determination of which portions of an underlying investment have been deemed sold or exchanged in a taxable event shall be made in the same manner as if there had been an actual sale or exchange. (C) Built-in loss For purposes of this section, the term built-in loss means, with respect to any derivative or underlying investment in an investment hedging unit, any loss which would have been recognized and taken into account under subsection (a) if the derivative were terminated or transferred, or the underlying investment were sold or exchanged, at its fair market value as of the later of the time that the investment hedging unit was established or the time that the derivative or the underlying investment became part of the investment hedging unit. (D) Built-in gain For purposes of this section, the term built-in gain means, with respect to any underlying investment in an investment hedging unit, any gain which would have been recognized and taken into account under subsection (a) if the underlying investment were sold or exchanged at its fair market value as of the later of the time that the investment hedging unit was established or the time that the underlying investment became part of the investment hedging unit. (4) Special transition rules for REITS electing to include certain debt instruments in hedging units If a taxpayer makes the election under section 492(b)(4) with respect to an investment hedging unit, then, in applying this subsection to such unit, the following rules shall apply: (A) Built-in gains and losses Paragraph (3) shall be applied by— (i) including in built-in loss under subparagraph (C) the excess (determined as of the effective date of the election) of built-in loss of the underlying investment or the derivatives over the built-in gain of the derivatives or the underlying investment, and (ii) including in built-in gain under subparagraph (D) the excess (as so determined) of built-in gain of the underlying investment or the derivatives over the built-in loss of the derivatives or the underlying investment. (B) Capital loss carryovers If, for any taxable year during which such election is in effect with respect to such investment hedging unit, a taxpayer has a capital loss carryover to such taxable year from any taxable year preceding such taxable year, the taxpayer shall, in addition to other short-term capital gain of the taxpayer (if any), treat as short-term capital gain (rather than as ordinary income) an amount equal to the lesser of— (i) the net gain from such investment hedging unit (as determined under section 491(a)) during such taxable year, or (ii) the sum of— (I) any built-in loss with respect to such investment hedging unit suspended under section 491(b)(3) and recognized as a result of a taxable sale or exchange during the taxable year, plus (II) the capital loss carryovers to such taxable year from any such preceding taxable year. (c) Taxable event For purposes of this part, the term taxable event means— (1) with respect to any derivative which is not part of an investment hedging unit— (A) the termination or transfer of such derivative, and (B) the close of any taxable year if the taxpayer has rights or obligations with respect to such derivative at such time, and (2) with respect to all derivatives and underlying investments which are part of the same investment hedging unit— (A) the establishment of the investment hedging unit, (B) the termination or transfer of any such derivative, (C) the sale or exchange of all or any portion of any such underlying investment, (D) the entering into of another derivative, or the acquisition of an additional amount of such underlying investment, after the establishment of the investment hedging unit if such derivative or additional amount is treated as part of the investment hedging unit under section 492, and (E) in the case of— (i) an investment hedging unit with respect to which an election is in effect under section 492(b), the close of each business day, and (ii) any other investment hedging unit, the close of any taxable year if the applicable hedging period with respect to such unit includes such close. (3) Termination or transfer For purposes of this part, the term termination or transfer includes, with respect to any derivative, any termination or transfer by offsetting, by taking or making delivery, by exercise or being exercised, by assignment or being assigned, by lapse, by sale or other disposition, by assumption, or otherwise. (d) Treatment of payments with respect to certain derivatives Notwithstanding any other provision of this title— (1) In general Except as provided by the Secretary, in the case of a payment pursuant to a derivative (other than an option)— (A) any item of income, deduction, gain, or loss with respect to the payment shall be taken into account for purposes of this title at the time of the payment, and (B) proper adjustment shall be made in the amount of any subsequent gain or loss for items taken into account by reason of subparagraph (A). This paragraph shall not apply to a payment in connection with a taxable event. (2) Rules relating to character and source of gain or loss In the case of any item of income, deduction, gain, or loss with respect to payments described in paragraph (1)— (A) the rules of subsection (b)(1)(A) shall apply in determining the character of such item, and (B) except as provided in section 871(m), the rule of subsection (b)(1)(B) shall apply in determining the source of such item. (e) Suspension of holding period while underlying investment part of investment hedging unit For purposes of section 1222, in the case of any underlying investment which is part of an investment hedging unit, the holding period for such investment shall not include any period during which the underlying investment is part of such unit. (f) Applicable financial statement For purposes of this part, the term applicable financial statement means— (1) an applicable financial statement (as defined in section 451(b)(3)), (2) a financial statement which is made on the basis of international financial reporting standards and is filed by the taxpayer with an agency of a foreign government which is equivalent to the United States Securities and Exchange Commission and which has reporting standards not less stringent than the standards required by such Commission, but only if there is no statement of the taxpayer described in paragraph (1), or (3) a financial statement filed by the taxpayer with any other regulatory or governmental body specified by the Secretary, but only if there is no statement of the taxpayer described in paragraph (1) or (2). 492. Investment hedging units (a) Investment hedging unit For purposes of this part— (1) In general Except as provided in subsection (b)— (A) a taxpayer shall be treated as having an investment hedging unit with respect to an underlying investment during any applicable hedging period with respect to the underlying investment, and (B) subject to paragraph (3), such investment hedging unit shall at any time during the applicable hedging period consist of the following held by the taxpayer at such time: (i) Each derivative with respect to the underlying investment which has a delta with respect to any portion of the underlying investment which is within the range beginning with minus 0.7 and ending with minus 1.0. (ii) Each portion of the underlying investment described in clause (i) with respect to which any derivative has a delta within the range described in clause (i). (2) Applicable hedging period The term applicable hedging period means, with respect to any underlying investment of a taxpayer, a continuous period— (A) beginning with the first time (after a period which is not an applicable hedging period) the taxpayer holds 1 or more of the derivatives with respect to the underlying investment, and 1 or more portions of the underlying investment, which are described in paragraph (1)(B), and (B) ending with the time none of such derivatives and portions are so described. (3) Special rules relating to delta and combining derivatives (A) In general For purposes of this subsection— (i) a derivative with respect to an underlying investment shall be treated as having a delta within the range described in paragraph (1)(B)(i) if the derivative by itself, or in combination with 1 or more other derivatives, has such delta with respect to any portion of such underlying investment, and (ii) the determination under paragraph (1)(B) of which derivatives have such delta, and each portion of the underlying investment with respect to which such derivatives have such delta, shall be made in the manner which results in the largest portion of such underlying investment being so described. (B) Secretarial authority for applicable traded derivatives The Secretary may prescribe regulations or other guidance to modify the rules under subparagraph (A) to simplify the application of such rules to applicable traded derivatives. (4) Applicable traded derivatives For purposes of paragraph (3)— (A) In general The term applicable traded derivative means any listed option or regulated futures contract. (B) Regulated futures contract The term regulated futures contract means a contract— (i) with respect to which the amount required to be deposited and the amount which may be withdrawn depends on a system of marking to market, and (ii) which is traded on (or subject to the rules of) a qualified board or exchange. (C) Listed option The term listed option means any option (other than a right to acquire stock from the issuer) which is traded on (or subject to the rules of) a qualified board or exchange. (D) Qualified board or exchange The term qualified board or exchange means— (i) a national securities exchange which is registered with the Securities and Exchange Commission, (ii) a domestic board of trade designated as a contract market by the Commodity Futures Trading Commission, or (iii) any other exchange, board of trade, or other market which the Secretary determines has rules adequate to carry out the purposes of this part. (b) Election with respect to items included in investment hedging unit (1) In general For purposes of this part, a taxpayer may elect to treat all derivatives with respect to an underlying investment, and all of such underlying investment, as part of an investment hedging unit. (2) Election Any election under this subsection with respect to an underlying investment— (A) shall apply to all derivatives with respect to such underlying investment, and all of such underlying investment, held at any time after the election is made (including during any period such derivatives or underlying investment are not held simultaneously), and (B) shall be irrevocable. (3) Deemed election for taxpayers failing to identify (A) In general If a taxpayer— (i) does not have an election in effect under paragraph (1) with respect to an underlying investment, and (ii) fails to meet the requirements of subsection (c) for testing and identifying derivatives with respect to the underlying investment, the taxpayer shall be treated as having made the election under paragraph (1). (B) Treatment of election For purposes of paragraph (2), a deemed election under this paragraph— (i) shall be treated as made as of the first time the taxpayer fails to meet the requirements of subsection (c) with respect to the underlying investment, and (ii) notwithstanding paragraph (2)(B), may be revoked with the consent of the Secretary. (4) Election for investors in debt instruments subject to section 856 (A) In general A real estate investment trust (as defined in section 856) may elect to include all fixed-rate debt instruments, all contracts to acquire or sell fixed-rate debt instruments, and all interest rate derivatives in an investment hedging unit under this subsection. Such election shall be made at such time and in such manner as the Secretary may prescribe and, once made, shall be irrevocable without the consent of the Secretary. (B) Application to existing hedging transactions (i) In general An election under subparagraph (A)— (I) shall include all derivatives which are part of transactions the taxpayer has, before the effective date of the election, designated under sections 856(c)(5)(G) and 1221(a)(7) as hedging transactions of real estate-related borrowings, and (II) shall be treated as having automatically terminated such designations as of such effective date. Any unrecognized built-in gain or loss with respect to such derivatives as of such effective date shall be taken into account as provided under section 491(b)(4)(A). (ii) Change in method of accounting The termination of the designation of a derivative as part of a hedging transaction under clause (i) shall be treated as a change in method of accounting by the taxpayer. (c) Definitions and rules relating to taxpayers identifying investment hedging units In the case of a taxpayer with respect to which an election is not in effect under subsection (b) with respect to an underlying investment— (1) In general The taxpayer shall, at the times described in paragraph (3), test the derivatives with respect to the underlying investment and make the identifications described in paragraph (2). (2) Identification (A) In general The taxpayer shall identify the following with respect to an underlying investment: (i) Each derivative described in subsection (a)(1)(B)(i). (ii) Each portion of the underlying investment described in subsection (a)(1)(B)(ii). (B) Derivatives and underlying investment not part of investment hedging unit A taxpayer shall identify the derivatives with respect to an underlying investment, and the portions of the underlying investment, which are not required to be identified under subparagraph (A). (C) Portion may include all of underlying investment For purposes of this part, the term portion with respect to any underlying investment identified may include all of the underlying investment. (3) Times identifications required to be made (A) In general The taxpayer shall test and make the identifications required under this subsection at the following times during any continuous period the taxpayer simultaneously holds 1 or more derivatives with respect to an underlying investment and 1 or more portions of the underlying investment: (i) The beginning of the period. (ii) Immediately after the taxpayer (during such period)— (I) enters into another derivative with respect to the underlying investment or acquires an additional amount of such underlying investment, or (II) terminates or transfers 1 or more derivatives with respect to the underlying investment or sells or exchanges any portion of the underlying investment, except that no testing and identification shall be required under this subclause with respect to any such transaction if the taxpayer does not have an investment hedging unit with respect to the underlying investment immediately before such transaction. (iii) Such other times during such period as the Secretary may prescribe by regulations or other guidance. (B) No other times for testing Except as provided by the Secretary, there shall not be taken into account for purposes of this part any testing and identification done by the taxpayer with respect to an underlying investment at a time other than the times required under subparagraph (A). (4) Manner A taxpayer shall be treated as timely making the identifications required under this subsection if the derivatives with respect to, and each portion of, an underlying investment are clearly identified as part of (or as not part of) the investment hedging unit for purposes of this paragraph before the close of the day on which the identification is required (or such other time as the Secretary may prescribe). (5) Treatment of incorrect identification The Secretary shall prescribe regulations or other guidance to properly characterize any income, gain, expense, or loss arising from any derivative or underlying investment which is incorrectly identified under paragraph (2) as being part of, or not being part of, an investment hedging unit. (d) Delta For purposes of this section— (1) In general The term delta means, with respect to any derivative and underlying investment, the ratio of the expected change in the fair market value of the derivative to a very small change in the fair market value of the underlying investment. (2) Method of determination The delta with respect to any derivative with respect to an underlying investment (or any combination of such derivatives) shall be determined— (A) in a commercially reasonable manner, and (B) except as provided by the Secretary, in a manner which is consistent with the manner used by the taxpayer or the taxpayer's broker for purposes of an applicable financial statement. (3) Time for making determination The delta with respect to any derivative and underlying investment shall be determined as of any date the taxpayer is required to make the identifications described in subsection (c). (4) Multiple underlying investments (A) In general Except as provided in subparagraph (B), if the value of a derivative is determined by reference to more than 1 underlying investment, the delta shall be determined separately with respect to each underlying investment. (B) Methods for combinations of underlying investments The Secretary may provide methods for determining the delta of any derivative with respect to combinations of 2 or more underlying investments. (e) Other definitions and rules For purposes of this part— (1) Underlying investment (A) In general The term underlying investment means, with respect to any derivative, any item— (i) which is described in any of the paragraphs (1) through (8) of section 493(a) (or any item substantially the same as any such item), and (ii) by reference to which the value of the derivative, or any payment or other transfer with respect to the derivative, is determined either directly or indirectly. (B) Coordination with section 475 In the case of a dealer in securities to which section 475 applies (and a dealer in commodities with respect to which an election is in effect under section 475(e)), such term shall not include any item which, but for this subparagraph, would be treated as an underlying investment if such item is treated as a security under section 475 (including a commodity treated as a security under section 475(e)). (C) Indirect determinations For purposes of subparagraph (A)(ii), the value of, or any payment or other transfer with respect to, a derivative shall not be treated as indirectly determined by reference to one or more of the items described in paragraphs (1) through (8) of section 493(a) solely because the change in a variable affecting such value, payment, or other transfer also affects the value, level, amount, or calculation of such item or items. (2) Establishment of investment hedging unit A taxpayer shall be treated as having established an investment hedging unit with respect to an underlying investment— (A) in the case of a taxpayer with an election in effect under subsection (b) with respect to the underlying investment, as of the date the election takes effect, and (B) in the case of any other taxpayer, as of the beginning of each applicable hedging period with respect to the underlying investment. (3) Related parties, etc For purposes of this section— (A) Attribution between related persons Any derivative or underlying investment held by a related party (within the meaning of subsection (f)) with respect to the taxpayer shall be treated as held by the taxpayer. (B) Certain pass-through entities If part or all of the income, gain, loss, or expense with respect to a derivative or underlying investment held by a partnership, trust, or other entity would properly be taken into account for purposes of this chapter by the taxpayer, then, except to the extent otherwise provided by the Secretary, such derivative or investment shall be treated as held by the taxpayer. (C) Stock and debt whose value primarily determined by reference to other items Except as provided by the Secretary, if the taxpayer holds an item described in paragraph (1) or (3) of section 493(a) the value of which, or with respect to which any payment or other transfer, is primarily determined by reference to one or more other items described in paragraphs (1) through (8) of section 493(a), then, solely for purposes of this subpart, such item described in paragraph (1) or (3) of section 493(a) shall also be treated as if it were such other item. (f) Related party For purposes of this section— (1) In general A person is a related party to the taxpayer if, with respect to any period during which a derivative or underlying investment is held by such person, such person— (A) is the taxpayer’s spouse, (B) is a dependent of the taxpayer or any other taxpayer with respect to whom the taxpayer is a dependent, (C) is an individual, corporation, partnership, trust, or estate which controls, or is controlled by (within the meaning of section 954(d)(3)), the taxpayer or any individual described in subparagraph (A) or (B) with respect to the taxpayer (or any combination thereof), (D) is an individual retirement plan, Archer MSA (as defined in section 220(d)), or health savings account (as defined in section 223(d)), of the taxpayer or of any individual described in subparagraph (A) or (B) with respect to the taxpayer, (E) is an account under a qualified tuition program described in section 529, an ABLE account (as defined in section 529A(e)(6)), or a Coverdell education savings account (as defined in section 530(b)) if the taxpayer, or any individual described in subparagraph (A) or (B) with respect to the taxpayer, is the designated beneficiary of such account or has the right to make any decision with respect to the investment of any amount in such account, (F) is an account under— (i) a plan described in section 401(a), (ii) an annuity plan described in section 403(a), (iii) an annuity contract described in section 403(b), or (iv) an eligible deferred compensation plan described in section 457(b) and maintained by an employer described in section 457(e)(1)(A), if the taxpayer or any individual described in subparagraph (A) or (B) with respect to the taxpayer has the right to make any decision with respect to the investment of any amount in such account, or (G) files a consolidated return (within the meaning of section 1501) with the taxpayer for any taxable year which includes a portion of such period. (2) Determination of marital status (A) In general Except as provided in subparagraph (B), marital status shall be determined under section 7703. (B) Special rule for married individuals filing separately and living apart A husband and wife who— (i) file separate returns for any taxable year, and (ii) live apart at all times during such taxable year, shall not be treated as married individuals. (g) Regulations The Secretary shall prescribe such regulations or other guidance as may be appropriate to carry out this section, including regulations or guidance which require in appropriate cases a taxpayer to bifurcate derivatives described in subsection (d)(4) for purposes of applying this part or which may be necessary to prevent the avoidance of the purposes of subsection (f) (including treating persons as related parties if such persons are formed or availed of to avoid the purposes of such subsection). 493. Derivative defined (a) In general For purposes of this part, except as otherwise provided in this section, the term derivative means any contract (including any option, forward contract, futures contract, short position, swap, or similar contract) the value of which, or any payment or other transfer with respect to which, is (directly or indirectly) determined by reference to one or more of the following: (1) Any share of stock in a corporation. (2) Any partnership or beneficial ownership interest in a partnership or trust. (3) Any evidence of indebtedness. (4) Except as provided in subsection (b)(1), any real property. (5) Any commodity which is actively traded (within the meaning of section 1092(c)(4)). (6) Any currency. (7) Any rate, price, amount, index, formula, or algorithm. (8) Any other item which the Secretary may prescribe. Except as provided by the Secretary to prevent the avoidance of the purposes of this part, such term shall not include any item described in paragraphs (1) through (8). For purposes of this subsection, the value of, or any payment or other transfer with respect to, a contract shall not be treated as indirectly determined by reference to one or more of the items described in paragraphs (1) through (8) solely because the change in a variable affecting such value, payment, or other transfer also affects the value, level, amount, or calculation of such item or items. (b) Exceptions (1) Certain real property (A) In general For purposes of this part, the term derivative shall not include any contract with respect to interests in real property (as defined in section 856(c)(5)(C)) if such contract requires physical delivery of such real property. (B) Options to settle in cash (i) In general For purposes of subparagraph (A), a contract which provides for an option of cash settlement shall not be treated as requiring physical delivery of real property unless the option is exercisable only in unusual and exceptional circumstances. (ii) Option of cash settlement For purposes of clause (i), a contract provides an option of cash settlement if the contract settles in (or could be settled in) cash or property other than the underlying real property. (2) Hedging transactions (A) In general For purposes of this part, the term derivative shall not include any contract which is part of a hedging transaction (as defined in section 1221(b)). (B) Section 988 hedging transactions For exception for section 988 hedging transactions, see section 988(d)(1). (3) Securities lending, sale-repurchase, and similar financing transactions To the extent provided by the Secretary, for purposes of this part, the term derivative shall not include the right to the return of the same or substantially identical securities transferred in a securities lending transaction, sale-repurchase transaction, or similar financing transaction. (4) Options received in connection with the performance of services For purposes of this part, the term derivative shall not include any option described in section 83(e)(3) received in connection with the performance of services. (5) Insurance, annuity, and endowment contracts For purposes of this part, the term derivative shall not include any insurance, annuity, or endowment contract issued by an insurance company to which subchapter L applies (or issued by any foreign corporation to which such subchapter would apply if such foreign corporation were a domestic corporation). (6) Derivatives with respect to stock of members of same worldwide affiliated group (A) In general For purposes of this part, the term derivative shall not include any derivative (determined without regard to this paragraph) with respect to stock issued by any member of the same worldwide affiliated group in which the taxpayer is a member. (B) Worldwide affiliated group For purposes of this paragraph, the term worldwide affiliated group means a group consisting of— (i) the includible members of an affiliated group (as defined in section 1504(a), determined without regard to paragraph (2) of section 1504(b)), and (ii) all controlled foreign corporations in which such members in the aggregate meet the ownership requirements of section 1504(a)(2) either directly or indirectly through applying paragraph (2) of section 958(a) or through applying rules similar to the rules of such paragraph to stock owned directly or indirectly by domestic partnerships, trusts, or estates. (7) Commodities used in normal course of trade or business For purposes of this part, the term derivative shall not include any contract with respect to any commodity if— (A) such contract requires physical delivery with the option of cash settlement only in unusual and exceptional circumstances, and (B) such commodity is used (and is used in quantities with respect to which such derivative relates) in the normal course of the taxpayer’s trade or business (or, in the case of an individual, for personal consumption). (c) Contracts with embedded derivative components (1) In general If a contract has derivative and nonderivative components, then each derivative component shall be treated as a derivative for purposes of this part. If the derivative component cannot be separately valued, then the entire contract shall be treated as a derivative for purposes of this part. (2) Exception for certain embedded derivative components of debt instruments A debt instrument shall not be treated as having a derivative component merely because— (A) such debt instrument is denominated in a nonfunctional currency (as defined in section 988(c)(1)(C)(ii)), or (B) payments with respect to such debt instrument are determined by reference to the value of a nonfunctional currency (as so defined). (d) Treatment of American Depository Receipts and similar instruments Except as otherwise provided by the Secretary, for purposes of this part, American depository receipts (and similar instruments) with respect to shares of stock in foreign corporations shall be treated as shares of stock in such foreign corporations. B Similar contracts Sec. 494. Tax treatment of contracts similar to derivatives. 494. Tax treatment of contracts similar to derivatives (a) In general For purposes of this title, if there is a taxable transaction with respect to any applicable property interest, then, notwithstanding any other provision of this title other than section 1032, gain or loss attributable to the taxable transaction shall be considered gain or loss from the sale or exchange of property which has the same character as the property to which the applicable property interest relates has (or would have) in the hands of the taxpayer. (b) Definitions For purposes of this section— (1) Applicable property interest The term applicable property interest means any right or obligation with respect to property other than— (A) a derivative (as defined in section 493), or (B) any position in applicable property to which section 1092 applies. (2) Taxable transaction The term taxable transaction means, with respect to any applicable property interest— (A) any termination or transfer (as defined in section 491(c)(3)) of such interest, or (B) any payment in fulfillment or partial fulfillment of such interest..