With the proliferation of online and discount brokerages, people are trading the stock market in ever-increasing numbers. However, as an individual or sole proprietor, traders cannot take advantage of the many tax advantages and asset protection strategies available to companies. Trading the market can be a way to make extra income, or even possibly a full-time living. Like any business, the income generated from trading is taxable and can create significant tax liabilities for the successful trader.

Individuals can trade as individuals or sole proprietors, qualify for trader status, or trade through a business entity. For the active trader, creating a legal trading business will often provide the best tax treatment and asset protection.

Tax Issues for Traders

According to the IRS, trading is not a business activity. In fact, all income from trading is considered unearned or passive income. The presumption is individuals are investors and any trading activities are done for long-term capital accumulation and not for paying current liabilities. For this reason, unless an individual can qualify for trader status, he or she will be treated like any other tax filing individual.

Income from trading cannot be reduced by contributing to an IRA or pension. The only advantage of being considered a passive trader is that the income derived from trading is not subject to additional self-employment taxes. After that, deductions are the same as normally afforded to W-2 wage earners, which are generally limited to mortgage interest, property taxes, and charitable deductions. The amounts of most deductions are restricted to a percentage of adjusted gross income. Because trading is not considered a business activity, all the expenses necessary to trade are excluded as deductions. For most active traders, the costs of necessities such as education, a trading platform, software, internet access, computers and the like can be considerable.

For most traders, the biggest tax issue they face is deductions for trading losses are limited to gains. After that, only $3,000 can be deducted against ordinary income. In a year where net capital losses exceed $3,000, individuals can only carry forward $3,000 of that loss per year against future income.

Tax Remedies

To avoid such tax treatment, some active traders try to qualify for trader status. The qualified trader is allowed to file a Schedule C and deduct ordinary and necessary business expenses, which could include education, entertainment, margin interest, and other trading-related expenses. Qualified traders can also take a Section 179 deduction and write off up to $19,000 a year for equipment used in trading activities. Finally, a qualified trader can elect a Section 475(f) or the mark to market (MTM) election.

Since the late 1990s, mark-to-market accounting has allowed traders to change their capital gains and losses to ordinary income and losses. On the last day of the year, all positions are assumed to be sold at market value and a hypothetical gain or loss is calculated. For the following year, the basis for each of these positions is calculated by assuming they were also purchased at market value. The hypothetical gains and losses at year-end are added to actual gains and losses for tax purposes. 

Because gains and losses are regarded as ordinary income under MTM, all losses are deducted in the year they occur. Under MTM, traders are not bound by the $3,000 net capital loss limitation and can deduct all losses in the year they occur, providing the maximum tax relief in the current year. Some traders will also elect MTM to avoid the 30-day wash sale rule, which disqualifies loss deductions on "substantially identical" securities bought within 30 days before or after a sale.

How the IRS Defines a Trader

In IRS Publication 550 and Revenue Procedure 99-17, the IRS has set out general guidelines that provide guidance as to the activities that qualify trading as a business. To be engaged in a business as a trader in securities, a person must trade on a full-time basis and derive most of his or her income through day trading. According to the IRS, a trader is someone who trades significantly and continuously to profit from the short-term fluctuations in security prices. 

Traders are individuals who make multiple trades daily to profit from intraday market swings and do so continuously throughout the year. They spend a considerable amount of time documenting and researching trades and strategies and incur a significant amount of expenses to conduct their business. Although not specifically required, most qualified traders will open and close multiple trades daily and hold their positions for less than 30 days.

For active traders, the benefits of qualifying are obvious, but these guidelines are open to interpretation by the IRS and the courts. Only a small percentage qualify, even some whose only income is derived through trading.

A Legal Trading Business

The only way to ensure you are receiving the same tax treatment as a qualified trader is to create a separate corporate entity to trade through. By creating a limited liability company (LLC) or limited partnership, you can receive all the same tax treatment as a qualified trader without having to qualify. The legal entity usually receives less scrutiny by the IRS because the assumption is no one would go through the trouble and expense of forming the entity unless they were committed to trading as a business venture. It is extremely difficult for individuals to change an election, such as MTM, once it has been chosen. With the company, if there is an advantage to changing accounting methods or the legal structure, the entity can simply be dissolved and re-formed accordingly.

More Success Equals More Entities

For highly successful traders, some advisors will suggest structures that include multiple entities to maximize the tax and protection benefits. Even though the actual structure is determined by an individual's financial goals, it usually includes a C corporation, which exists to be the general partner or managing member of several limited liability companies. In this way, extra income can be transferred to the corporate entity (usually up to 30% of revenue) through a contracted management fee to take advantage of the additional tax strategies available.

For example, to fund college expenses or to give children money tax-free, family members can become employees. The corporation can then take advantage of deductible salaries and education expenses, while building Social Security and Medicare accounts. Medical reimbursement plans can be created to fund all types of elective health care and medical insurance premium. Retirement accounts such as IRAs and 401(k)s can be transferred into a 401a, an ERISA pension fund that allows contributions of up to $49,000 per year and can never be attacked by creditors or through a legal claim. Because the corporation pays taxes on net income, the goal is to pay as many expenses as possible with pretax dollars and to minimize taxable income.

This type of business structure also provides excellent asset protection because it separates the business from the individual. Long-term assets can be held by other limited liability companies that can use accounting methods better suited for investments. All assets are protected from creditors and the legal liabilities of the individual because they are held by separate legal entities. The amount of legal protection is determined by state law. Many advisors suggest forming these entities in states that will not allow the piercing of the legal structure. Most prefer Nevada because of its lack of corporate sales tax, flexibility to change orders as a sole remedy by creditors, the anonymity of not having to list shareholders, and the nomination of corporate officers.

Conclusion

Although trading through a complex legal structure has obvious benefits, it also can add a significant amount of complexity to one's personal affairs. For traders who have been consistently profitable but cannot or do not want to qualify for trader status, trading through a simple business is essential. If you wish to set up a pension fund to defer taxes, pay salaries to loved ones or recoup significant medical expenses tax-free, then the added complexity is a decent trade-off to gain the benefits of a compound structure. Either way, to receive the best tax treatment and legal protection, speak with advisors who understand the formation and operation of these entities for traders.