Form 8949 & 1099-B Issues

Securities traders face challenges with Form 8949 and 1099-Bs over cost-basis reporting.

Per IRS rules for brokers, 1099-B reports wash sales for that one brokerage account based on identical positions. The IRS rules are different for taxpayers, who must calculate wash sales based on substantially identical positions across all their accounts, including joint, spouse, and IRAs. In many cases, it’s expected that broker-issued 1099-Bs might report different wash-sale losses than a taxpayer must report on Form 8949. A taxpayer may trigger a wash-sale loss between a taxable and IRA account, but a broker will never write that on a 1099-B. In some cases, a broker can report a wash-sale loss deferral at year-end, but the taxpayer may have absorbed the loss in another account, thereby eliminating the problem.

This problem is still unknown to many taxpayers and tax preparers. Many continue to file an incorrect Form 8949 relying solely on broker 1099-B reporting when they should be using a securities trade accounting software or service to calculate and report wash-sale loss adjustments more accurately.

A predicament for some tax preparers who understand the problem is that calculating wash sales correctly leads to unreconciled differences between Form 8949 and 1099-Bs. Some tax preparers don’t want to draw attention to those differences, fearing IRS notices generated from IRS 1099-B automated matching programs. Ironically, the mission of Congress in cost basis legislation was to “close the tax gap,” providing more opportunities for matching 1099-Bs, but it seems to have caused a mess over the issue of wash sales.

There is one scenario where a taxpayer can confidently rely on a 1099-B: when the taxpayer has only one brokerage account and trades equities only with no trading in equity options, which are substantially identical positions, and has no activity in nontaxable retirement accounts. Plus, the taxpayer must not have any wash-sale loss or other adjustments to carry into the current year from the prior year. That’s unlikely to be the case for an active equities trader.

This problem is the biggest for taxpayers who have multiple accounts. One solution is for traders who qualify for TTS to trade in an entity and elect Section 475 MTM, exempt from wash-sale rules. Another solution is to trade Section 1256 contracts. Traders can keep investment accounts with far less wash-sale loss activity on the individual level.

For more information, see Green’s Trader Tax Guide