Active Trader FAQs

QUESTION: I am an active trader and do not have a job besides trading. If short-term capital gains are taxed at the ordinary income level and I have no ordinary income, what would the tax rate be on my short-term capital gains?  I am also wondering if short-term capital gains are added to ordinary income which could push my tax rate higher.

ANSWER: While capital gains seem to be taxed differently (and in the case of futures and long-term holdings they are), they all add to the total of your income.  To figure out your income tax rate you would use the total of all income received during the year, including your trading.

QUESTION: Are there any tax advantages to trading as an LLC above what I am doing now as a Trader in Securities, Mark-to-Market trader, who already can deduct business expenses and such?

ANSWER: The main advantage is the certainty of being able to deduct your expenses.  The Trader in Securities designation, while sounding very official, is completely absent from the IRS code, and is roughly based upon tax court cases.  My concern is that courts could easily lay down a new ruling, and completely wipe-out your Trader in Securities filing status. You could be trading all year, assuming that you would be classified a Trader in Securities, only to find the law changed in November and you being unable to deduct your expenses.  With that in mind and also the asset protection an LLC will give you, it is much safer to trade in the entity.

QUESTION:  How are 1256 contracts taxed? And how does Mark-to-Market affect them?

ANSWER: 60% of the gain or loss of a 1256 contract is treated as a long-term capital gain or loss and the other 40% is treated as a short-term capital gain or loss. This is regardless of the actual length of your holding period.

All indexes, such as 1256 contracts, are treated as Mark-to-Market. Typically, the mark-to-market treatment changes the nature of the income from capital to ordinary. However, in the case of 1256 contracts, it remains a capital gain or loss.

You have the choice of electing mark-to-market for your accounting method, and converting the tax treatment of your 1256 contracts to ordinary income (losses). The largest benefit is if you lose a lot of money trading. Then, the loss is considered ordinary and offsets other ordinary income you may have. With just an ordinary loss, the $3,000 capital loss limitation is also removed.

In general, taking the Mark-to-Market election would not be a good idea for someone who only traded 1256 contracts or index options because changing the capital gains to ordinary income would remove the benefit of the 60% – 40% split.  However, the Mark-to-Market rule does allow you to treat some of your trading as Mark-to-Market and identify other positions as not Mark-to-Market.  To do this you must identify those positions that you do not want to be Mark-to-Market with a note in your business records at the time of purchase.

QUESTION 4: When Mark-to-Market accounting is used by an LLC and the net income is determined, how is that reported by the individual members if reporting as a partnership?

ANSWER 4: The Mark-to-Market election in the LLC will allow all income to be reported as net income or net loss, which will then flow through to each of the partners via the K1 that is part of the LLC tax return.

QUESTION:  What is the rule for long-term capital gain rates and the trader?

ANSWER: Long-term capital gains occur when you own a position for longer than 12 months and one day and sell it for a gain. This is considered a long-term capital gain and is taxed at a tax rate of 10% at the low end to 20% at the high end.

If you trade 1256 contracts, (commodities & futures) all gain or loss is treated as 60% long term and 40% short-term capital gains and losses.

If you trade options on “cash settled indexes” they too are taxed the same as 1256 contracts. This type of trading is certainly advantageous to the typical trader who may be trading in indexes but does not know of this benefit.

QUESTION:  If you share a joint brokerage account with someone else but the brokerage account is in your name and social security number can you assign a portion of the trading activity to the other party?

ANSWER: No, unfortunately the trading activity will be reported (by your broker) to the person whose name and social security number is on the account.  At the end of the year, Form 1099B will be provided to you and the IRS by your broker.  This form reports all of your trading activity for the year.  Therefore, the IRS will be looking to you to report all of the trading activity on your tax return.  If you change the name and social security number on your brokerage account to the other party then it will be from that time forward that the trading activity will be reported to the other party.

QUESTION: If a person applies as a one person LLC, and doesn’t qualify for partnership reporting, does the person then have to report his business on a schedule 1040 Schedule C — or does the IRS always allow an LLC to file as a partnership?

ANSWER: The IRS views a single member LLC as a disregarded entity.  As such, they are not expecting you to file a Form 1065 to report your LLC’s activity.  Instead, you would report that activity on a schedule C and include it in your 1040 return.