Currency, Precious Metal and Futures ETFs: Don’t Get Caught in the Tax Trap

Over the past several years, a host of new ETFs from State Street (STT), Barclays, PowerShares, Rydex, WisdomTree (WSDT.PK) and other fund sponsors have opened up formerly difficult-to-access markets to individual investors. Asset classes such as commodities, foreign real estate and currencies that used to be open primarily to institutional or high-net-worth investors have become accessible to nearly everyone with a brokerage account.

While these new ETFs have provided investors with a myriad of opportunities to diversify their portfolios, they have also brought some surprising—and not altogether welcome—tax consequences. Unlike ETFs built on traditional equity or bond indexes, funds that hold currencies, futures contracts or hard assets such as precious metals receive different treatment under the U.S. tax code. Individuals looking to diversify into these areas need to know the sometimes arcane tax rules that govern these asset classes before they decide to commit their investment dollars.

Precious Metals

For investors seeking exposure to the precious metals markets, exchange-traded funds offer several ways to go. Some ETFs, such as the iShares MSCI South Africa Index Fund (EZA), are built on indexes heavily weighted toward gold and platinum mining companies. Others, such as the PowerShares DB Silver Fund (DBS), use futures contracts to gain precious metals exposure. (Futures contracts also receive special treatment by the IRS, which is discussed below.) The most direct exposure, however, can be found in funds that actually hold gold and silver bullion. Currently three funds—streetTRACKS Gold Shares (GLD), iShares Comex Gold Trust (IAU) and iShares Comex Silver Trust (SLV)—allow investors to do this.

The IRS taxes gains on equity-based ETFs just like any other mutual fund, stock or bond: for gains on ETFs held for a year or more, the long-term capital gains rate of 15 percent applies (5 percent for low-income investors). When it comes to actual gold and silver, however, the IRS takes a different approach. The tax code classifies metals—whether in the form of ingots, jewelry or coins—as “collectibles” and applies a different set of rules. Under the tax code as it currently stands, gains recognized from the sale of collectibles, including gold and silver (the rules also apply to art, antiques and other items) held for more than one year are taxed at a maximum rate of 28 percent. The maximum rate on short-term gains, i.e., capital gains recognized upon the sale of assets held for one year or less, is generally the shareholder’s ordinary income tax rate.

Investors who purchase ETFs that directly own precious metals should factor this into their overall investment strategy. One way to defer this tax bite is to hold precious metals ETFs in a tax-deductible IRA or a Roth IRA.

Futures

To avoid the adverse tax consequences of holding an ETF in gold or silver bullion, investors may instead turn to ETFs that use gold or silver futures to achieve similar results. The PowerShares DB Gold Fund (DGL) and PowerShares DB Silver Fund are examples of funds that seek to reflect the performance of the underlying precious metal using futures. But ETFs that use futures to achieve their results, whether they track gold, silver, corn, copper or currencies, come with their own tax twist.

Uncle Sam taxes futures contracts under a “mark to market” system. This is where things can get a little tricky—and where investors who hold futures-linked ETFs need to be careful. Under the terms of the tax code, futures contracts held at the end of the taxable year will be treated for federal income tax purposes as if they were sold at their fair market value. The net gain or loss resulting from these so-called deemed sales, along with the net gain or loss from any actual sales, must be taken into account by the ETF when it determines its taxable income for the year. ETF shareholders are on the hook for their pro rata share of the taxes on this income.

Now, if all this sounds alarming, then consider a few things. While the deemed sale might sound like a forced sale of an investor’s shares, it’s simply a legal fiction the fund must use at the end of the year to calculate its income. In addition, nearly all futures-based ETFs operate by “rolling” their contracts, i.e., by selling out of the current month’s contract before it expires, buying a future month’s contract and pocketing the difference between the two prices. In other words, futures-based ETFs are constantly selling and buying nearly their entire inventory of contracts, yet the latest distribution (on December 17, 2007) from the PowerShares DB Gold Fund, for example, was $0.81 per share. Again, investors can mitigate adverse tax consequences by holding futures-based ETFs in tax-deferred accounts.

Recent Ruling on iPath Currency ETNs

An exchange-traded note is a debt-based instrument that, like its ETF cousins, trades throughout the day on the secondary market like a stock. In December of 2007, the IRS issued a ruling on the taxation of a certain class of currency-based exchange-traded notes sponsored by iPath, a division of Barclays. In their simplest form, ETNs represent a promise by the issuer to pay the ETN holder the value of the underlying index plus interest at the maturity date. ETFs, by contrast, represent a fractional ownership in all the stocks of the underlying index.

It’s important to note two things: 1) The December 2007 IRS ruling applies only to the iPath currency-linked ETNs; and 2) The IRS doesn’t tax currencies the same way it taxes investments in debt or equity. The IRS treats currencies much like collectibles; in fact, it doesn’t really consider foreign currencies to be an investment at all.

Prior to the IRS ruling, the interest on the iPath currency ETNs was incorporated automatically into the price of the ETN, and ETN holders didn’t owe any taxes on this income until they sold their shares. Thus, as long as investors held the ETN for more than a year, the income would be taxed at the long-term capital gains rate of 15 percent. In the original prospectus materials for its currency ETNs, iShares was also telling investors that any additional long-term gains in the price of the ETN would be taxed at the capital gains rate. All that changed when the IRS weighed in last December.

In the wake of the December 2007 ruling, investors in the iPath currency-linked ETNs will owe ordinary income tax on income from these securities, even where this income is incorporated back into the value of the note. The bottom line for investors is that they will have to come up with this tax payment, even though they won’t actually receive that taxable income until they liquidate their position in the ETN.

Comments

[jcrash]

Very enlightening. Thanks.

[jens ^j^]

Numistic Bullion is only too easy to Black Market and with the way the Scounrels are playing (taxing) us would be the best way to go. In Denmark (possibly like most of Europe) the Black Market is alive and well. So if you trade your "coins" for services/purchases that would be Bartering, and if taxable would be very difficult to police. Take your bullion home, that way you don't find out later that your piece of paper is only a piece ofexpensive worthless paper.

[Self-filer]

What if you sold GLD and SLV and already filed your tax returns using the long-term capital gains rate? Is the IRS going to check every Schedule D item to see any of the ETF sales are metal-related, and then send you a bill for the extra taxes? This is a ridiculous tax policy.

[NewInvestor]

Thank you for the article. I was planning to invest today in GLD outside of my Roth IRA. Now, I know better.

[d_teller]

There's a potential BOMB in the K-1 (section 20, code V: Unrelated Business Taxable Income) from commodity ETFs and others that report from the Index Maker, not the standard 4798 IRA or 1099 report.

The IRS may disqualify an investor's sheltered accounts if the "UBTI" exceeds $1000, among all the shelters (Roths included).The IRS doesn't want tax sheltered accounts to have a lot of "passive income' from tax-sheltered activities (such as grantor trusts, limited-publicly-traded partnerships, etc.)

All the other K-1 goodies (tax loss carry-forwards, return of capital, etc., which reduce the basis of the investment and convert dividends to cap gains tax rates) are lost in an IRA, where the amount of the asset is taxed at marginal rates upon withdrawal (or conversion).

Most., if not all of GLD's "K-1" probably won't show any UBTI, but...at one point this Spring, the grantor trust had to find "alternative sources" for Au, when the world's supplies didn't match the creation units' needs. Of course, when the IMF dumped 300 tons, then, all was probably O.K.

But I believe a review, especially one by someone who has experience with 401 (k) and 403(b) limitations, [under the 501 c tax regs], should at least mention the HAZARDS of receiving (in Feb. Mar., of '09) a seies of K-1's that have substantial UBTI.

By the way, the prospecti for the various Powershares commodity linked ETFs from the Deutsche Bank indexes, e.g., DBC, do have buried in approxmately page 20 a paragraph that touches on the tax hazards...but obliquely. An investor who wishes more info, can call the Powershares Investor Relations number..and here at SeekingAlpha, there's a (mostly up to date description) list of the commodity futures, commodity holding and grantor trusts, and the comparable ETFs that hold company stocks , i.e., DBA vs. MOO.

Any investor who has purchased and may have held for only a week or so, one of the the ETFs that file K-1's, will receive a K-1, after the end of Jan., and if there's no substantial UBTI, then nothing of that K-1 has to be reported to the IRS.

It doesn't matter if DBA gave you "10,000.00" dividends from straddles and contracts; or if GLD gave you 5000.00 in tax-loss carry-forwards from mining development costs ... the thing that matters is the possibility of your needing to file form 920-t, and pay tax on an account that should have remained "tax-sheltered".

(920t's are filed by tax-exempt charities and religious organizations that have passive income such as 'UBTI' ... but they only need to pay the tax, they probably won't lose their tax-sheltered status. However, your IRA's may lose their tax-sheltered status).

[d_teller]

P.S. to Self-filer...above, the K-1 goes electronically, from the index maker to the IRS, and it has your Brokerage account number...not your SSI or tax I.D. The IRS computer matches them in nanoseconds.

[StateofConfusion]

Thanks Don, I invested in DBC recently (first time in a futures ETF) and I will sell it soon. This lunacy tax code already makes me sick for several weeks every year. I think the government keeps the public from revolting by snowing us with so much garbage we don't have time to realize what it has done to us. I'm all for a VAT and dumping the income tax.

[sportsguy]

i assume that options on DBC held in an IRA are excluded from the unfavorable tax implications. . . anyone know otherwise?

[d_teller]

My comments regarding the UBTI were ONLY for any type of security held in a tax-sheltered account.

The commodities ETF's are great diversifiers, along with REITs, in any portfolio, and the grantor trusts' sales won't be taxed at 28%, but at marginal rates if within an IRA. BUT, there's always the possibility, due to mergers, acquisitions and portfolio changes in the underlying indices "creation units" that a tax-shelter disqualifier event may occur.

[chamois 16]

Purely a nitpick, but ETF are not mutual funds. From the SEC:

"There are some investment companies, known as exchange-traded funds or ETFs, which are legally classified as open-end companies or UITs. ETFs differ from traditional open-end companies and UITs, because, pursuant to SEC exemptive orders, shares issued by ETFs trade on a secondary market and are only redeemable in very large blocks (blocks of 50,000 shares for example). ETFs are not considered to be, and are not permitted to call themselves, mutual funds."