Traders Elect Section 475 For Massive Tax Savings

If you are a securities trader eligible for trader tax status (TTS), consider making a timely Section 475 election for 2019. Section 475 means you’ll avoid wash sales and the capital loss limitation. You might also become eligible for the 20% qualified business income deduction, although QBI treatment is currently uncertain for TTS traders.

Historically, the chief tax benefit of Section 475 was deducting trading losses without limits. Section 475 trades are exempt from onerous wash sale loss adjustments on securities, which can trigger a tax bill on phantom income at year-end. Section 475 ordinary losses are not capital losses, which means the puny $3,000 capital loss limitation doesn’t apply.

Example 1: A sole proprietor TTS trader incurred a trading loss of $30,000 in 2018. He elected Section 475 for 2018 by April 17, 2018, and reported it as an ordinary loss on Form 4797 Part II. He also deducted $10,000 of trading business expenses on a Schedule C. He offsets the entire trading business loss of $40,000 against wage income of $100,000 for a gross income of $60,000. That generates a significant tax refund. Without a 475 election, this trader would have a $3,000 capital loss limitation on Schedule D, a $10,000 ordinary loss on Schedule C, and a gross income of $87,000. He would also have a capital loss carryover of $27,000.

Example 2: The markets dropped in December 2018, and many traders incurred significant capital losses. Markets rallied back in January 2019, and many of traders repurchased positions they sold for losses in December. They didn’t wait 31 days, so they triggered wash sale loss adjustments at year-end 2018. It caused many to owe significant capital gains taxes on phantom income. The deferred WS cost basis might cause some traders to have substantial capital losses in 2019, well above the capital loss limitation. A double whammy. A 475 election for 2019 can convert 2019 capital losses into ordinary losses. It doesn’t fix 2018 but helps a lot in 2019.

With the advent of the new tax law TCJA and 199A regs, TTS traders might derive an essential tax benefit from Section 475 ordinary income. TCJA introduced a 20% qualified business income (QBI) deduction, and QBI includes Section 475 ordinary income or loss but excludes capital gains and losses, forex Section 988 and swap contract ordinary income, dividends and interest income. Trading is a “specified service trade or business” (SSTB), which means the QBI deduction is disallowed if the individual’s taxable income exceeds the 2019 income cap of $421,400/$210,700 (married/other taxpayers). However, QBI tax treatment is uncertain because of 199A references to Section 864(c), which seem to deny the QBI treatment for TTS traders. There are conflicts and unresolved questions for traders in 199A, so stay tuned. (See Uncertainty About Using QBI Tax Treatment For Traders.)

Excerpt from Green’s 2019 Trader Tax Guide
By default, securities and Section 1256 investors are stuck with capital-loss treatment, meaning they’re limited to a $3,000 net capital loss against ordinary income. The problem is that their trading losses may be much higher and not useful as a tax deduction in the current tax year. Capital losses first offset capital gains in full without restriction. After the $3,000 loss limitation against other income is applied, the rest is carried over to the following tax years. Many traders wind up with little money to trade and unused capital losses. It can take many years to use up their capital loss carryovers. What an unfortunate waste! Why not get tax savings from using Section 475 MTM right away?

Business traders qualifying for TTS have the option to elect Section 475 MTM accounting with ordinary gain or loss treatment in a timely fashion. When traders have negative taxable income generated from business losses, Section 475 accounting classifies them as net operating losses (NOLs). Caution: Individual business traders who miss the Section 475 MTM election date (April 15, 2019, for 2019) can’t claim business ordinary-loss treatment for 2019 and will be stuck with capital-loss carryovers.

A new entity set up after April 15 can deliver Section 475 MTM for the rest of 2019 on trading losses generated in the entity account if it files an internal Section 475 MTM election within 75 days of inception. This election does not change the character of capital loss treatment on the individual accounts before or after its creation. The entity is meant to be a fix for going forward; it’s not a means to clean up the past problems of capital loss treatment.

Ordinary trading losses can offset all types of income (wages, portfolio income, and capital gains) on a joint or single filing, whereas capital losses only offset capital gains. Plus, business expenses and business ordinary trading losses comprise an NOL, which is carried forward. It doesn’t matter if you are a trader or not in a carryforward year. Business ordinary trading loss treatment is the most significant contributor to federal and state tax refunds for traders.

Starting in 2018, TCJA repealed the two-year NOL carryback, except for certain farming losses and casualty and disaster insurance companies. This means NOLs are carried forward indefinitely, and the deduction of 2018 and subsequent-year NOLs are limited to 80% of taxable income. TCJA also introduced a new excess business loss (EBL) limitation of $500,000 married and $250,000 for other taxpayers. Add EBL to an NOL carryforward.

Section 475 ordinary losses reduce net investment income for calculating the 3.8% Obamacare net investment tax.

There are many nuances and misconceptions about Section 475 MTM, and it’s essential to learn the rules. For example, taxpayers are entitled to contemporaneously segregate investment positions that aren’t subject to Section 475 MTM treatment, meaning at year-end, they can defer unrealized gains on properly segregated investments. Taxpayers can have the best of both worlds — ordinary tax losses on business trading and deferral with lower long-term capital gains tax rates on segregated investment positions. We generally recommend electing Section 475 on securities only to retain lower 60/40 capital gains rates on Section 1256 contracts. Far too many accountants and traders confuse TTS and Section 475; they are two different things, yet very connected.

Section 475 election procedures
Section 475 MTM is optional with TTS. Existing taxpayer individuals that qualify for TTS and want Section 475 must file a 2019 Section 475 election statement with their 2018 tax return or extension by April 15, 2019. Existing partnerships and S-Corps file in the same manner by March 15, 2019.

Election statement. “Under Section 475(f), the Taxpayer elects to adopt the mark-to-market method of accounting for the tax year ending Dec. 31, 2019, and subsequent tax years. The election applies to the following trade or business: Trader in Securities as a sole proprietor (for securities only and not commodities/Section 1256 contracts).”

Form 3115 filing. Don’t forget an essential second step: Existing taxpayers complete the election process by filing a Form 3115 (change of accounting method) with the election-year tax return. (I cover the Section 481(a) adjustment in the guide.)

The Section 475 election procedure is different for new taxpayers like a new entity. Within 75 days of inception, a new taxpayer may file the Section 475 election statement internally in its records. The new entity does not have to submit a Form 3115 because it’s adopting Section 475 from inception, rather than changing its accounting method.

If you have a significant capital loss carryover going into 2019, you might want to wait on making a 475 election since you will need capital gains to use it up. (I cover this decision-making and related 475 strategies in my tax guide.)

For more in-depth information on Section 475, see Green’s 2019 Trader Tax Guide Chapter 2.

I revised this blog post on March 5, 2019, in conjunction with my new blog post Uncertainty About Using QBI Tax Treatment For Traders.