New IRS Rules Allow Free And Easy Section 475 Revocation

There’s good news for traders about Section 475 MTM buried in the IRS annual update on procedures for changes of accounting method. It has always been free and easy to elect Section 475 MTM, yet difficult and costly to revoke that election. With this rule change, the IRS makes revocation a free and easy process, mirroring the Section 475 election and automatic change of accounting procedure for existing taxpayers.

Before this rule change, the Section 475 revocation procedure cost several thousand dollars in filing fees (close to $7,000 for hedge funds) and the outcome was uncertain since it required advanced consent from the IRS, which could be denied. Few traders opted for revocation; most used other options like suspension or exit (see below).

New revocation procedure is similar to the election procedure
To elect Section 475, “existing taxpayers” must file an election statement with the IRS attached to their prior year tax return or extension by April 15 of the current tax year for individuals and partnerships and March 15 for S-Corps. The second step requires filing a Form 3115 with the tax return for year of the election. For example, a 2015 Section 475 election statement must be filed by April 15, 2015 and the 2015 Form 3115 must be filed (in duplicate) with the 2015 tax return in 2016.

There’s an exception for “new taxpayers” (new entities) who file the election statement in their own books and records within 75 days of inception, since there is no prior tax return to attach the election to. New taxpayers don’t file a Form 3115 because they adopt Section 475 from inception rather than change an accounting method.

The new revocation procedure is similar to the election procedure. An existing individual or partnership must file a 2016 notification statement of revocation (see details below) with the IRS by April 15, 2016 (March 15, 2016 for S-Corps). The second step is to file 2016 Form 3115 for revocation of Section 475 with the 2016 tax return in 2017.

Suspension of Section 475
Historically, our trader clients navigated around the costly and uncertain revocation procedure by “suspending” their Section 475 election.

By disqualifying themselves for trader tax status, they became investors who could not use Section 475 as of the disqualification date. In that case, the Section 475 election was suspended until the trader re-qualified (if ever) for trader tax status. While the IRS may have preferred that the trader follow the costly revocation procedure, we suggested suspension as another option free of cost.

Taxpayers will appreciate having this new choice to revoke Section 475 instead of leaving it suspended on their individual returns if they elected it as a sole proprietor trader.

Other options besides revocation
Prior to this rule change, our trader clients avoided the costly and uncertain revocation procedure in two ways: by trading less and falling short of qualification for TTS, thereby “suspending”the Section 475 election; or by closing a trading business entity which used Section 475, thereby terminating Section 475. These traders could form a new “do over”entity to get back to the cash method, otherwise called the “realization” method.

When to revoke Section 475
A trader may want to elect Section 475 MTM on securities and also Section 1256 contracts to benefit from large ordinary business loss treatment year-to-date as of the April 15 election deadline of the current tax year. In the subsequent tax year, the trader may want to return to lower Section 1256 60/40 capital gains tax rates and retain Section 475 on securities only. With this rule change, the trader can revoke Section 475 on commodities (Section 1256 contracts) only and not securities.

Unlike with retail traders, it’s not convenient for an investment manager to close a hedge fund or trade less to revoke Section 475. Hedge funds will really appreciate the new automatic and free revocation procedure. Hedge funds often have trouble following Section 475 segregation of investment rules. They enter a trading position and sometimes “let profits run” by having it morph into an investment position. That doesn’t adhere to stringent Section 475 segregation of investment position rules. Plus, the manager prefers deferral at year-end so investors don’t request redemptions in order to pay taxes on unrealized gains if using Section 475 MTM. Segregation requires contemporaneous (same day) identification of investment positions and segregation must be done in form and substance. (Read IRS warns Section 475 traders.)

Rev. Proc. 2015-14
Click on Rev. Proc. 2015-14 and scroll down to pages 349 through 355. It starts at SECTION 23. MARK-TO-MARKET ACCOUNTING METHOD (§475). This explains the election procedure for Section 475. Scroll further to page 351: 23.02 Taxpayers requesting to change their method of accounting from the mark-to-market method of accounting described in §475 to a realization method.

• “(2) Exclusive procedure. The procedure set forth in this section 23.02 is the exclusive procedure for changing a taxpayer’s method of accounting from the mark-to-market method described in §475 to a realization method. Thus, filing the Notification Statement described in section 23.02(6) of this revenue procedure is the exclusive manner of revoking a §475(e), (f)(1), or (f)(2) election. Moreover, any taxpayer requesting permission to change to a realization method must follow the procedures described in this section 23.02 and other applicable provisions of Rev. Proc. 2015-13, 2015-5 I.R.B. XX, to request consent to change its method of accounting for securities described in §475(c)(2) (Section 475 Securities), commodities described in §475(e)(2) (Section 475 Commodities), or both.”
• “(5) Manner of making change. This change is made using a cut-off basis and applies only to Section 475 Securities, Section 475 Commodities, or both, that are accounted for using the mark-to-market method of accounting described in §475 and for which a change in method is requested under this section 23.02. Accordingly, a §481(a) adjustment is neither permitted nor required…Under the cut-off basis, a taxpayer must make a final mark of all Section 475 Securities, Section 475 Commodities, or both, that are being marked to market and that are the subject of the accounting method change being requested, on the last business day of the year preceding the year of change…”

I see some issues here. This assumes the taxpayer qualifies for trader tax status on the last day of the year for the final mark. If the taxpayer disqualifies for trader tax status before year-end, then Section 475 MTM is used only to the date of qualification ending. See suspension treatment above.

One catch
Darren Neuschwander, CPA, my co-managing member and our head of tax compliance, pointed out one catch.

“If a trader uses the automatic election to revoke Section 475(f), then the trader can’t use the automatic election to get 475(f) again for five years without going through the non-automatic procedures with the IRS, which includes a fee,” he said. “Now we have an opportunity for successful traders to remove Section 475 MTM, if needed, to use against capital loss carryovers without having to use a new entity. Also, we can help people remove MTM if they are concerned that they don’t want it in place in the future as an individual, without having to petition the commission of the IRS or pay the user fee. Basically, notification statement and another Form 3115 filing. Much simpler!”

For more information on the benefits of Section 475, click here.