By way of exception to the provisions of Article 38, interest rate or currency swaps entered into by credit institutions, finance companies or investment firms referred to in article 38 bis A and which are allocated to the hedging of financial instruments valued at their market value or to the specialised management of a trading activity, are valued at their market value at the close of each financial year or at the date on which they cease to meet the conditions for being subject to this valuation rule. The difference resulting from this valuation constitutes an item of income taxable at the standard rate.
If the conditions provided for in the first paragraph are no longer met, the valuation of contracts at their market value ceases to apply; in this case, the cash flows relating to these contracts are attached to the results according to the accrued interest rule. Correspondingly, the profit or loss resulting from this valuation is respectively deducted from or added to taxable income according to an actuarial allocation over the period remaining until the maturity of the contracts concerned.
For the application of the provisions of the first paragraph, the market value of the contract is determined, at the end of the financial year, by discounting future cash flows according to the corresponding market interest rate; this value is adjusted to take account of counterparty risks and the discounted value of expenses relating to the contract.
Provisions for losses relating to interest rate or currency swap contracts not subject to the provisions of the first paragraph are not deductible from taxable income.
Compensation payments recognised when interest rate or currency swap contracts not subject to the provisions of the first paragraph are entered into are added back to taxable income on an actuarial basis over the life of the contracts concerned. When these contracts are, subsequent to their conclusion, subject to the provisions of the first paragraph, the fraction of the balancing payments not yet reported to the tax bases is included in the income for the financial year during which their change of allocation takes place.
The valuation methods for contracts subject to the rules set out in the first paragraph are the subject of a detailed statement submitted to the control of the commission mentioned in the third paragraph, which makes it possible to justify the rates used for the discounting calculations; this statement is kept at the disposal of the administration.
For the application of the provisions of this article, other than those provided for in the last member of the first sentence of the second paragraph, over-the-counter contracts intended to guarantee the parties an interest rate relating to a reference capital, a term or one or more future maturities, as well as those intended to guarantee interest rate ceilings or floors, are treated in the same way as interest rate swaps.
(Paragraph disjoined).
A decree shall lay down the detailed rules for the application of this article.