Short Selling: How To Deduct Stock Borrow Fees

September 19, 2016 | By: Robert A. Green, CPA

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How To Deduct Borrowing Fees When Selling Stocks Short

Traders like to go long and short to play both sides of the market. The IRS has special tax rules for short sellers, and in this blog post, I focus on how to deduct stock borrow fees vs. interest expenses.

Stock borrow fees and loan premiums
Short selling is not free; a trader needs the broker to arrange a loan of stock from another account holder. Brokers charge short sellers “stock borrow fees” or “loan premiums.” Tax research indicates these payments are “fees for the temporary use of property.” Watch out: Many brokers refer to stock borrow fees as “interest expense,” which confuses short sellers.

For tax purposes, stock borrow fees are Section 212 “investment expenses” for investors and Section 162 business expenses for traders qualifying for trader tax status (TTS). Stock borrow fees are not “interest expense” so investors can’t include them in Section 212 “investment interest expense” deductions. It’s a significant distinction that has a profound impact on tax returns because investment expenses face greater limitations vs. investment interest expenses.

Support for this tax position
According to New York City tax attorney Roger D. Lorence: “Short sale expenses (stock borrow fees) are not investment interest expense. To support any interest deduction, there must be a valid interest-bearing obligation under state or federal law. (See Stroud v. U.S.) The IRS has ruled that short sales do not give rise to an interest-bearing indebtedness (Revenue Ruling 95-8, 1995-1 CB 107). Rather, the short sale borrower has a liability under state law to return the borrowed stock and pay fees, but this is not interest expense. This is why short sales do not give rise to Section 514 UBIT (no debt-financed property), which is the specific code section in issue in the ruling. The revenue ruling is based on Deputy v. du Pont. The du Pont case applies by analogy here because there can be no interest expense generated in a short sale.”

Investors face limitations on tax deductions
Investors are entitled to deduct Section 212 investment expenses including “investment interest expenses” and “investment expenses” reported on Schedule A (itemized deductions).

It’s important to differentiate between investment interest expenses vs. investment expenses because they have different tax treatments. Taxpayers carry over unused investment interest expense to the subsequent tax year(s), whereas they may not carry over unused investment expenses, which means they may entirely lose some of those. Calculate investment interest expense on Form 4952 where it’s limited to net investment income, with the balance carried over. Net investment income is portfolio income minus investment expenses. (Read Form 4952 instructions for further details.)

Investment expenses are “miscellaneous itemized deductions” in excess of 2% of adjusted gross income (AGI), and they are not deductible for the alternative minimum tax (AMT). Most itemized deductions are subject to a phase-out for the upper-income brackets (known as the Pease limitation, indexed for inflation); some taxpayers are better off using the standard deduction than the itemized deduction.

MORE: Tax treatment for selling short

Easy vs. hard to borrow fees
Very liquid securities are “easy to borrow,” and many brokers charge small fees to short sellers for lending out those shares. Non-liquid securities are “hard-to-borrow” and brokers update their “hard to borrow lists.” Brokers charge higher “hard to borrow fees,” and most publish those rates with sample calculations on their websites. Hard to borrow fee rates rise as demand for shorting increases. A few brokers specialize in finding very hard to borrow stocks, and they charge “up front borrow fees” in addition to hard to borrow fees.

Brokers conflate stock borrow fees with interest expenses
There is a lack of clarity in separating stock borrow fees from interest expenses. The distinction matters since fees are investment expenses, whereas interest is an investment interest expense.

I wonder if some brokers prefer using the term interest expense since customers may find that more logical with borrowing shares under securities lending agreements, and because it leads to better tax treatment. Customers may also object to paying significant fees.

For example, one leading online broker calls the “interest rate charged on borrowed shares” a “fee rate” and also “net short stock interest.” This broker does not report the fees on Form 1099.

A few other online brokers mention interest on shorted shares as a “fee rate.” They report “miscellaneous non-reportable deductions” on Form 1099; not interest expense.

One of the largest online brokers states on its website: “When you borrow the shares, you pay interest to the brokerage house for this loan, and the harder the shares are to find, the higher the interest rate.” I called customer support, and a support person admitted it’s a stock borrowing fee and not interest expense.

It would be helpful if brokers cleaned up their language to be clear about stock borrow fees vs. interest expense.

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Active traders using Section 475 have it easy
Active traders qualifying for trader tax status (TTS) with a Section 475 election have an easy time reporting short-sale trades and related expenses, and they maximize tax advantages. They are unaffected by special rules for short sales for constructive sales on appreciated positions and holding period rules. (Section 475 is tax beneficial because it exempts traders from the $3,000 capital loss limitation against other income, wash-sale losses, and short sale adjustments.)

With Section 475 mark-to-market accounting, traders impute sales at year-end on open positions. That negates the need to make “constructive sales on appreciated positions” from selling short against the box. Short-term vs. long-term holding periods are not an issue with Section 475. TTS unlocks Section 162 business expense treatment, so expenses related to selling short (including stock borrow fees and interest expense) are deductible as business expenses from gross income. Sole proprietors use Schedule C for reporting business expenses.

Example of a trader with TTS
I recently worked with a client who had a $800,000 net short-term capital gain from selling short during 2015 and $500,000 of stock borrow fees (probably high for a short seller). He hoped the effect on his taxable income would be $300,000 ($800,000 less $500,000) as that was his economic gain. But, his accountant told him taxable income was considerably higher after applying itemized deduction limitations and the AMT preference for investment expenses. The client qualified for TTS, and therefore could report his stock borrow fees along with other trading business expenses on Schedule C. His taxable income effect was under $300,000.

But, his Schedule C would look like an enormous red flag since it reported trading business expenses only, and that amount was a loss over $500,000. He entered capital gains and losses on Form 8949, transferred to Schedule D. In Green’s 2016 Trader Tax Guide, I suggest moving a portion of business trading capital gains to Schedule C to zero it out. We also recommend a footnote explaining that the taxpayer is profitable and the transfer of income to Schedule C. Additionally, the note explains what trader tax status is by law, how the client qualified for TTS, and how to treat selling-short expenses.

Example of an investor
Another client has a net capital loss of $100,000. After the $3,000 capital loss limitation against other income, he has negative taxable income, which means he will not get any tax benefit from his investment expenses, which include stock borrow fees.

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