CME is going to publish a new contract: Options on Micro E-mini S&P 500 Future in Aug 31, 2020. I was wondering how will it be taxed?

There's already discussion like Are futures options eligible for the 60/40 tax rule? covering options trading tax, but this contract is different. As section 1256 says:

Section 1256 Contract A section 1256 contract is any:

Regulated futures: contract, Foreign currency contract, Nonequity option, Dealer equity option, or Dealer securities futures contract.

Exceptions: A section 1256 contract does not include: Interest rate swaps, Currency swaps, Basis swaps, Interest rate caps, Interest rate floors, Commodity swaps, Equity swaps, Equity index swaps, Credit default swaps, or Similar agreements.

and the definition of Nonequity contracts:

This is any listed option (defined later) that is not an equity option. Nonequity options include debt options, commodity futures options, currency options, and broad-based stock index options. A broad-based stock index is based on the value of a group of diversified stocks or securities (such as the Standard and Poor's 500 index).

Warrants based on a stock index that are economically, substantially identical in all material respects to options based on a stock index are treated as options based on a stock index.

But this option is not a commodity futures option. I was wondering how will it be treated in tax?


Note that options have already long been traded on the regular and E-mini S&P 500 futures. The Micro E-mini options will be similar.

The key to answering the question is that all of these options are commodity futures options. Don't read "commodity futures" as referring only to physically settled contracts on tangible goods like oil and wheat. In the US, the Commodity Futures Trading Commission (CFTC) regulates financial futures on broad-based indexes as well as futures on tangible commodities. According to the CFTC:

futures on broad-based security indexes are under the exclusive jurisdiction of the CFTC.

S&P 500 futures options are commodity futures options, and thus are nonequity options, and thus are Section 1256 contracts.

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