7589 / What is a forward contract? What is the difference between a futures contract and a forward contract?

A taxpayer who enters into a forward contract to deliver property that is the same as or substantially identical to an appreciated financial position that he or she holds (see Q 7617) will generally be treated as having made a constructive sale of that position.¹ Despite this, not all forward contracts will be subject to constructive sale treatment.² According to the Blue Book, a forward contract results in a constructive sale only if it provides for delivery, or for cash settlement, of a substantially fixed amount of property at a substantially fixed price. If the amount of property provided for by the forward contract is subject to significant variation under the terms of the contract, it will not constitute a forward contract.³ Furthermore, an agreement that is not a “contract” under applicable contract law, or that is subject to “very substantial contingencies,” was not intended to be treated as a forward contract.⁴

However, the Service distinguished a case in which, in addition to entering into a forward contract pledging to deliver property that was the same as or substantially identical to an appreciated financial position that he held, a taxpayer loaned and delivered the shares to the other party at the time of the contract. In that case, the IRS found a constructive sale.⁵

For those forwards that do result in a constructive sale under IRC Section 1259, unless certain requirements are met for closing out the forward contract, the constructive sale generally will result in immediate recognition of gain by the taxpayer as if the appreciated financial position were sold and repurchased on the date of the deemed sale⁶ (see Q 7617 to Q 7621).