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TScoots
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In the middle of 2018 I changed careers and began full time day trading - because of this I was wondering if I could still file a mark-to-market election for 2018?

If I could still make the election - is the election made before submitting my tax return or with my tax return?

Because of this election I would except to have to file a form 3115, as well. If this is correct, is form 3115 submitted before or after the mark-to-market election?

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3 Replies

In the middle of 2018 I changed careers and began full time day trading - because of this I was wondering if I could still file a mark-to-market election for 2018?

it is too late to elect for 2018

for 2019 you must attach the election statement to your 2018 tax return, or to form 4868 by April 15. state the year you want the election to take effect.

In the middle of 2018 I changed careers and began full time day trading - because of this I was wondering if I could still file a mark-to-market election for 2018?

I made this same mistake in 2020. I didn't know I had to make the election in 2019. Has there been any change to the tax code to get around this? 

In the middle of 2018 I changed careers and began full time day trading - because of this I was wondering if I could still file a mark-to-market election for 2018?

no change in the tax laws that would allow a late election.  file the election by 4/15/2021 if you want to use it in 2021. the law requires filing the election by the original due date of the return. if you extend the 2020 return you must file it with the extension.

note that just because you refer to yourself as a trader the IRS looks to certain criteria to see if you qualify.

 

There’s no statutory law with objective tests for eligibility. Subjective case law applies. Leading tax publishers have interpreted case law to show a two-part test to qualify for Trade Tax Status:

Taxpayers’ trading activity must be substantial, regular, frequent, and continuous.
The taxpayer must seek to catch swings in daily market movements and profit from these short-term changes rather than profiting from the long-term holding of investments.
IRS agents often refer to Chapter 4 in IRS Publication 550 - Special Rules for Traders.

The following facts and circumstances should be considered in determining if your activity is a securities trading business.

Typical holding periods for securities bought and sold.
The frequency and dollar amount of your trades during the year.
The extent to which you pursue the activity to produce income for a livelihood.
The amount of time you devote to the activity.
The publication mentions holding period, frequency, and dollar amount of trades, as well as time devoted by the taxpayer. It also says the intention to make a livelihood, an essential element in defeating the hobby-loss rules.

 

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