“Taxation of Financial Instruments,” Tax Notes, July 1997 TNT 1997-7 Taxn of Financial Instruments
Anyone compiling a work on the taxation of financial transaction will have to consider which dimension of the subject matter of focus on, for example: participants (brokers, dealers, hedgers, investor); transactions (debt, equity, forwards, options, and their progeny); and tac concepts (realization, deferral, mark to market, accrual, bifurcation, integration). The difficulty with Taxation of Financial Instruments is that it does not appear to have chosen any particular theme. Rather, the editors compiled nine articles on disparate topics that are loosely connected with finance. Certainly, this is not the book to go to with a specific question on the taxation of forwards or options, or a number of other topics normally associated with financial instruments, although it does provide a valuable overview of some of the topics that the editors have chosen to focus on.
The first chapter, written by Thomas A. Humphreys of Brown & Wood, discusses asset securitization. Considering the excellent but extremely detailed books on this subject (such as Peaslee, Federal Taxation of Mortgage Backed Securities), no doubt the chapter author wished to provide the outsider a first look at the topic. This he does in a straightforward and easily assimilable fashion. He describes the various securitization vehicles, such as partnerships and trust, and then goes into some details as to the requirements for establishing and maintaining a real estate mortgage investment conduit (REMIC), although he does no discuss the real estate investment trust (REUT). The author then describes the financial asset securitization investment trust (FASIT), the new vehicle that will allow taxpayers to securitize assets other than real estate mortgages. There is a short mention of the state tax implications of asset securitization that, although clearly inadequate, is a welcome reminder to taxpayers to consider these issues as well.
The chapter entitled Eurobond Transactions surveys the U.S federal income tax treatment of foreign portfolio interests rules. The following chapter provides an introduction to contingent debt instruments, including variable-rate instruments, instruments that provide for an alternative payment schedule upon the occurrence of a contingency, and other contingent instruments. The subject matter is so broad here that the author can give only a brief review of the regulations. It would have been helpful, however, if the chapter author had provided a little more substance, for example, in discussing the definition of the debt instrument. At the very least, she could have footnoted the rich literature on this and other subjects, which are only touched on in the chapter, to which the author has made significant contributions.