I became a DayTrader for 2021 with 475(f) MTM opted. I want to stop day trading now. Will IRS allow my losses as ordinary losses if i traded for 9 months only?

Forum|Forum|4 years ago
September 11, 2021
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Due to losses I want to stop day trading now. Will I still qualify for the Trader status with MTM for year 2021 while filing 4797 if i traded for 9 months only? Is 9 months long enough for IRS to qualify me as day trader?

TurboTax Online

Best answer by Rick19744

Some comments regarding your question and situation:

You don't just "become" a day trader. There is no statute or election to reach this status. This is a facts and circumstances test.
Trading securities has what I will call 3 levels
- investor status
- trader tax status (TTS)
- TTS with a mark-to-market election (MTM)
A taxpayer must be a qualified trader (TTS) in order to be eligible to make the MTM election
Should you qualify for TTS, which I will not go into details in this thread, and you wanted to make the MTM election for 2021, you would have needed to file an election by the original due date for your 2020 tax return. While the normal due date is April 15th, the IRS extended the due date to May 17, 2021.
In addition, you will need to file a form 3115 and include a copy of this with your 2021 form 1040. This is an automatic change in accounting.
In addition to filing the form 3115 with your tax return, you will also need to send a copy of the form 3115 to the IRS National office. There is no user fee for this method of accounting change request; it is automatic.
We will not be able to answer whether or not the IRS will agree that you were a qualified TTS since as stated above, this is very much facts and circumstances.
Revocation of MTM is a reverse mirror of the original election. Once revoked, a taxpayer cannot re-elect for 5 years after revocation.
As noted above, in order to qualify for MTM, a taxpayer must be a qualified trader (TTS). Once you no longer qualify for TTS, a taxpayer is no longer eligible to use the MTM; you are now just an investor and are not eligible for the MTM. As a result, the MTM status is essentially "suspended" until such time as the taxpayer once again qualifies for TTS.
So technically you have two options; a complete revocation or the alternate "suspension"
This is a tricky area and one fraught with costly errors if you are not familiar with all of the technicalities.
This is an area where a tax professional, one that understands this area, should be consulted.

M-MTax

A trader must make the mark-to-market election by the original due date (not including extensions) of the tax return for the year prior to the year for which the election becomes effective.

https://www.irs.gov/taxtopics/tc429

Mike9241

If you've made a valid election under section 475(f), the only way to stop using mark-to-market accounting for securities is to file an automatic request for revocation under Revenue Procedure 2019-43, Section 24.02. Under that revenue procedure, the request for revocation must be filed by the original due date of the return (without regard to extensions) for the taxable year preceding the year of change (the year of change is the first taxable year the revocation is to be effective). This revocation notification statement must be attached to either that return or if applicable, to a request for extension of time to file that return. Late revocations won't generally be allowed except in unusual and compelling circumstances

Sam Hopi

Hi Mike, I think you can help. I want to file 3115 timely to become day trader and opt in MTM but let me know

for a day trader what would be line 13 part ll as an individual. If yes, is answer should file Sch A on part l , what would be Present method and Proposed method?

And what is the answer of line 5 part l on Sch A as well?

If I want to file 3115 with my tax return, should mail it a duplicate to IRS?

Thanks a lot

Rick19744Answer

Employee

Some comments regarding your question and situation:

You don't just "become" a day trader. There is no statute or election to reach this status. This is a facts and circumstances test.
Trading securities has what I will call 3 levels
- investor status
- trader tax status (TTS)
- TTS with a mark-to-market election (MTM)
A taxpayer must be a qualified trader (TTS) in order to be eligible to make the MTM election
Should you qualify for TTS, which I will not go into details in this thread, and you wanted to make the MTM election for 2021, you would have needed to file an election by the original due date for your 2020 tax return. While the normal due date is April 15th, the IRS extended the due date to May 17, 2021.
In addition, you will need to file a form 3115 and include a copy of this with your 2021 form 1040. This is an automatic change in accounting.
In addition to filing the form 3115 with your tax return, you will also need to send a copy of the form 3115 to the IRS National office. There is no user fee for this method of accounting change request; it is automatic.
We will not be able to answer whether or not the IRS will agree that you were a qualified TTS since as stated above, this is very much facts and circumstances.
Revocation of MTM is a reverse mirror of the original election. Once revoked, a taxpayer cannot re-elect for 5 years after revocation.
As noted above, in order to qualify for MTM, a taxpayer must be a qualified trader (TTS). Once you no longer qualify for TTS, a taxpayer is no longer eligible to use the MTM; you are now just an investor and are not eligible for the MTM. As a result, the MTM status is essentially "suspended" until such time as the taxpayer once again qualifies for TTS.
So technically you have two options; a complete revocation or the alternate "suspension"
This is a tricky area and one fraught with costly errors if you are not familiar with all of the technicalities.
This is an area where a tax professional, one that understands this area, should be consulted.