CME CEO: Approval of perpetual futures in the U.S. may bring tax uncertainties

Terry Duffy, Chairman and CEO of CME Group, stated that the approval of perpetual futures contracts in the United States may expose traders to tax and regulatory uncertainties, as the related products may ultimately be classified as swaps rather than futures. Duffy noted that the long and short parties in perpetual contracts regularly exchange funding rates, a mechanism that aligns with the statutory definition of swaps under U.S. law.

The Commodity Futures Trading Commission (CFTC) currently classifies them as futures, and CME is legally challenging this approval with the CFTC. Duffy pointed out that if perpetual contracts are treated as futures, some institutional traders may be subject to the mixed tax treatment under Section 1256 of the U.S. tax code; if classified as swaps, they may be taxed under ordinary tax rules. The Internal Revenue Service (IRS) has yet to issue specific guidance on the tax treatment of perpetual futures. Legal experts indicate that perpetual futures are structurally similar to swaps but economically function like futures, and the court's interpretation of the relevant definitions will be crucial. Even if litigation clarifies the product classification, the IRS may still need to issue separate guidance on tax treatment.