TRADER VS. INVESTOR
By. BWS
DO YOU TRADE STOCKS more often than most people change their socks? Then you need to understand how Uncle Sam views your habit. Otherwise, come April 15, you'll be suddenly confronted with a mountain of paperwork. And those profits? Well, they'll seem a lot smaller once the Internal Revenue Service has taken its share. There are, however, some strategies that active investors can use to reduce their tax bills — and make life much more pleasant come tax season. Here's what you need to know about them.
Trader vs. Investor
In the world of taxes, "trader" and "investor" each has a special meaning that carries with it some pluses and minuses. Most individuals — even those who trade a few times a week — are, by the IRS's definition, investors. But if you spend your days buying and selling stocks like a hedge fund manager, then you are probably a trader, a title that can save you big bucks at tax time. How? By allowing you to fully deduct all your investing expenses, such as newsletter subscriptions, your home office and your computer equipment.
So what are you, you ask, a trader or an investor? This is one of the fuzziest areas of our fuzzy tax code. "The question is clear; the answer is not," says an IRS spokesman. The only way to define your status is to go by the guidelines laid out in several court cases that have addressed the question.
The courts say you are a trader if:
· You spend lots of time trading. Preferably, you don't have a regular full-time job. (My reading is, you can also be a part-time trader, but you had better be buying and selling a handful of stocks just about every day.)
· You have established a regular and continuous pattern of making lots of trades (several almost every day the markets are open).
· Your goal is to profit from short-term market swings rather than from long-term gains or dividend income.
If you think you qualify and want to know the nitty-gritty of the rules, see More Tax Tips for Day Traders. If you're not so sure, here's how I think these court cases apply to the real world. Say you spend 10 hours a week trading and total about 200 sales a year, all within a few days of your purchase. In my book, you're an investor, not a trader. You are not spending enough time or trading often enough to satisfy the IRS. How about 20 hours a week and 1,000 short-term trades? I think that amount of time and trading gets you there. If you spend 30 hours a week, make 5,000 short-term trades a year and don't have a full-time job, even the IRS should agree without a fight. If you choose, you can actually be both a trader and an investor. You must segregate your long-term holdings by identifying them as such in your records on the day you buy in. Then they won't "taint" your trader status.
Trading Points
If you've passed these mushy hurdles and qualify as a trader, here's your reward. According to the tax law, traders are in the business of buying and selling securities. From the IRS's perspective, you are self-employed in this activity, meaning you can deduct all your investing expenses on Schedule C, like any other sole proprietor. This is great, because investors have to account for these expenses on Schedule A, where they can write off only the amount that exceeds 2% of their adjusted gross income. Plus Schedule C write offs reduce your adjusted gross income, which raises the odds that you can fully deduct all your personal exemptions and take advantage of other tax goodies.
You can also deduct your margin account interest on Schedule C and probably take an immediate write off of up to $250,000 for 2008 (probably the same for 2009) for equipment used in your trading activities more than 50% of the time (computer stuff, desk, bookshelves, fax machine, etc.; it's called a Section 179 write off). Home-office deduction? Sure, as long as you use the space regularly and exclusively for trading and the deduction doesn't throw you into a net loss position. Finally, you don't have to pay self-employment tax on your net profit, because capital gains are exempted. All in all, a pretty good deal.
If you're a trader, you will still report gains and losses on Schedule D, and can still deduct only $3,000 in net capital losses each year. All this makes for a pretty funky-looking tax return. Schedule C will have nothing but expenses and no income, while your trading profits (we hope) will end up on Schedule D. I recommend attaching a statement to your tax return to explain the situation.
Mark-to-Market Traders
If you qualify as a trader, the IRS has a deal for you. Under normal circumstances, when you sell a stock at a loss, you get to write off that amount. But if you buy the same stock within 30 days, before or after you sell, the IRS considers it a "wash sale" — and you have a tax accounting nightmare to deal with. Fortunately, you can become a a "mark-to-market" trader, meaning that you will automatically become exempt from the wash-sale rule.
Here's how the mark-to-market rules work. On the last trading day of the year, you pretend to sell all your holdings (if any). Even though you still really hold the stocks, you book all the imaginary gains and losses as of that day for tax purposes. You then begin the New Year with no unrealized gains or losses, as if you had just bought back all the shares you had pretended to sell.
Being a mark-to-market trader has another advantage. Normally, investors can deduct only $3,000 in capital losses in a given year. But mark-to-market traders can deduct an unlimited amount of losses, which is a plus in a really awful market. As a mark-to-market trader you should report your gains and losses on Part II of IRS Form 4797. For more information, see IRS Revenue Procedure 99-17 in Internal Revenue Bulletin 99-7, which is available at the IRS Web site.
Drowning in Paper
How can you possibly account for hundreds of individual trades on your tax return? After all, the IRS wants not only to know your profit or loss from each sale, but a description of the security, purchase date, cost, sales proceeds and sale date. That's what many new traders are faced with around April 15 each year. Just scrawling in your total long- and short-term gains won't cut it with the IRS, either.
The best way I've found to handle this mess is to buy financial software and use the feature that allows you to download trading data from online brokers. Then you can transfer all the data into your tax preparation software without breaking a sweat.
If you insist on doing this by hand, then I recommend — at a minimum — showing the following on Schedule D: your net short- and long-term gains and losses, total sales proceeds and the total cost of your shares. That way, the IRS can still reconcile your return with the information that your broker provides. Attach a statement saying you will provide the details on request.
The Rest of Us
Truth be told, few people qualify as traders. If you're an investor in the IRS's eyes, you account for your gains and losses on Schedule D, just like always. And your expenses now fall into the undesirable category of "miscellaneous itemized deductions." You can't claim a home-office deduction, not for this anyway, and you can depreciate equipment over several years instead of all at once. On Schedule A, your investment expenses are combined with other miscellaneous items, such as fees for tax preparation, and you can write off only the amount that exceeds 2% of your adjusted gross income. And even if you do have enough itemized expenses to get a real deduction, you might get hit with the phase-out rule, which costs you one cent of every deductible dollar for every dollar of adjusted gross income above $166,800 for 2009.
One positive note: You can write off your margin account interest to offset the income you earn from your investments, such as interest, short-term capital gains and the like.
THINKING ABOUT becoming a day trader? More power to you. If the stock market's performance over the past few years hasn't scared you away from the idea, then you just might have the nerve that job requires.
Keep in mind, though, there is a difference — at least in the eyes of Uncle Sam — between an active investor and a stock trader. (See "Taxes on Day Trading.") Essentially, achieving trader status confers many more tax benefits than simple active investor hood. Of course, it also comes with the inherent financial risks of being a trader. In this column, I'll go into more detail on what it takes to meet the tax-law definition of a "trader" and what happens if you do.
Nailing down Your Tax Status
The IRS doesn't consider you a trader just because you like the way it sounds. But the government also hasn't gotten around to defining the term. All we have to go by are court cases decided before anyone imagined that people would be clicking the "trade now" buttons on their PCs while waiting for the microwave oven to count down. Nevertheless, I'm going to step way out on a limb and tell you how I think you should make the call on your status. Please take the following quiz.
Part I
1. Do you spend lots of time researching and executing your trades?
Just to pick a figure, I'd say you need at least 16 hours a week to be a trader. Of course, more is better.
2. Can you demonstrate a regular and continuous pattern of averaging several "round trips" (a buy and the related sale) for every day the market is open?
Vacations are allowed. But you can't have weeks or months without much going on unless you have a good reason like the market is dropping and you have no borrowing capacity to sell stocks short. Having at least 1,000 trades per year is good. Less could be problematic.
3. Are you strictly playing short-term positions?
Getting in and out of all your positions on the same day proves you intend only to profit from short-term market swings, as befits trader status. While every round trip doesn't have to be a day trade, most should be, and holding some stocks for as long as a month or two flushes your claim to be a trader unless these are very isolated instances. You can, however, keep longer-term holdings in a separate investment portfolio without jeopardizing your trader status.
4. Can you answer yes to all the preceding questions for an unbroken string of at least six months?
Of course, all year is best. If the six months are the last six months of the year, you are probably OK. Starting and stopping after six full months but before year end may allow you to claim you entered the business of trading and then abandoned it. But this is pushing the envelope.
UNLESS YOU ANSWERED yes to everything in Part I, you've already flunked. You are an investor in my book. Sorry. If, however, you've made it this far, then yes answers to the remaining questions are preferred but not mandatory. If some of your earlier yes answers were a bit shaky, resounding affirmatives will bolster your case for claiming trader status. On the other hand, two or three no answers weaken your position, even if you have nothing but solid yes responses in Part I.
PART II
1. Did you actually make money after all your deductible expenses (investment publications, ISP charges, computer, software, seminars, etc.)?
While traders are allowed to have bad years (just like baseball players), the tax law says a real business generally must be profitable at least three years out of five. You probably don't have that much history yet, but making a net profit (however small) always helps.
2. Can you say you have no regular full-time job or profession?
I believe you can be a part-time trader, but the IRS is skeptical.
3. If you are claiming trader status for last year, will you be able to do so for this year as well?
Remember you are supposed to be in the continuous business of trading stocks. A multiyear commitment looks more like a business, while a one-year (or shorter) commitment looks more like an aborted investment strategy or a hobby. Granted, a restaurant can rise and fall in the same year, and so can your business of being a trader. It just doesn't look as good. Having said all that, this question is probably the least important one in this quiz.
OK. That concludes the test, which is nothing more than my humble interpretation of some old court cases along with what I think are appropriate adjustments for the Internet era. Just to make sure I'm not leading you astray, I asked a noted guru on the subject of trader tax rules to check my work. He gave me a passing grade.
Based on the quiz results, let's assume you qualify as a trader. As explained in "Taxes on Day Trading," the IRS now considers you to be in the business of buying and selling stocks for a profit. You are therefore entitled to fully deduct your trader-related expenses on Schedule C. However, unlike most sole proprietors (me, for example), you don't have to pay the dreaded self-employment tax on your net profit. That's wonderful, but it gets better.
Save More Taxes With a Mark-to-Market Election
As a trader, you can also make the special "mark-to-market" election. If you do, two very important tax benefits come your way.
· First, you don't have to worry about the wash sale rule, which defers the tax loss when you buy the same stock within 30 days before or after a loss sale. If you make lots of trades, this can happen all the time. The disallowed wash sale loss gets added to the basis of the shares that caused the problem. In other words, with the mark-to-market election you won't have to spend as much time on bookkeeping as you do researching and trading stocks.
· You are also exempt from the $3,000 annual limit on net capital losses. Why? Because as a mark-to-market trader, all your trading gains and losses are considered "ordinary," just like garden-variety business income and expenses. If you have a biblically awful year, you can deduct your trading losses when you would otherwise be limited to a mere $3,000 writeoff. The tax savings should ease your pain.
Naturally, there's a price for these goodies. On the last trading day of the year, you as a mark-to-market trader must pretend to sell your entire trading portfolio (if any) at market and book all the resulting gains and losses on your return. You then pretend to buy everything back at the same price. So your stocks start off the new year with basis equal to market value and no unrealized gains or losses.
Also, you can't take advantage of the 15% long-term capital gains rate for stocks in your trading portfolio. However, this really isn't a problem because you shouldn't have anything but short-timers in your trading stable anyway. (See below regarding segregating your long-term investments.)
Unfortunately, many traders already missed the chance to make the mark-to-market election for 2008. And you'll miss out for 2009 as well if you're not careful.
What if 2008 was the first year you met the tax-law definition of a trader? The feds say it's too late to make the mark-to-market election for that year. You should have included it on a statement filed back in April 2008 with your 2007 return or with an extension request for that return. (This according to Revenue Procedure 99-17, which supplies the nitty-gritty details on making the election.) If you think this is a crazy rule, I agree. But it's the IRS's party.
The bottom line: Many traders won't be able to take advantage of the mark-to-market rules until this year. Write a note to yourself: You must attach an election statement for the year 2009 to your 2008 return filed by April 15, 2009, or to an extension request (Form 4868) filed by that date.
One more thing. If you are a trader during the year before the mark-to-market election takes effect, you have made an "accounting-method change." This requires filling out Form 3115 (a complicated little sucker previously known only to seasoned tax pros). For example, say you were a trader in 2008 and make the mark-to-market election for 2009 (don't forget the April 15, 2009, deadline). You'll have to deal with Form 3115 when you prepare your 2009 return sometime in 2010. (You may want professional assistance with that.)
How Traders Should Handle Stock Gains and Losses
If you are a trader who has not made the mark-to-market election, your capital gains and losses from trading go on Schedule D, the same as gains and losses from investing. As mentioned earlier, trading expenses go on Schedule C, which means you'll automatically show a loss on that form. Of course, this makes the IRS nervous, so you should attach a statement to Schedule C explaining that the positive side of your trading business shows up on Schedule D. The statement should also quantify your net trading gain. At least we hope there's a gain. We also hope it's more than enough to offset your expenses.
If you are using mark-to-market accounting, you should report all your trading gains and losses on Part II of IRS Form 4797 (Sales of Business Property). Then attach a statement to Schedule C, as explained in the preceding paragraph.
Why You Should Segregate Your Long-Term Investments
I've mentioned that you can be both a trader and an investor. So gains from your long-term investments will still qualify for that nice 15% rate without diminishing your trader tax benefits.
However, to occupy this "best-of-both-worlds" scenario, your records must clearly identify investment holdings as such on the day you buy them. Also, you should keep investment and trading stocks in separate brokerage accounts if you are investing in and trading the same issues.
Real Estate taxes are deductable for up to two residences.
Personal Property taxes are deductable on Pleasure Items such as a personal sail boat.
News 
Market Data 
Discover 
