New IRS guidelines clarify mark-to-market rules.

• Author: Schmeltz, Jonathan

With the heightened trading activity of the stock market in recent years, many individuals, particularly the so-called "day traders," may find it advantageous to elect the mark-to-market method of accounting for their trades. This means that traders will have to recognize their gain as ordinary income, which is not as detrimental as it sounds (most of the gain would be short-term capital gain). The real advantage of using mark-to-market accounting is that traders can claim losses as ordinary losses, and can be freed from concerns about the wash sale rule, constructive sale rule and straddles.

In Rev. Proc. 99-17, the IRS recently issued guidelines to clarify some of the rules for electing the mark-to-market method. These guidelines affect dealers in commodities as well as traders in securities or commodities.

As a result of the Taxpayer Relief Act of 1997, traders in securities or commodities are permitted to elect mark-to-market treatment (which is required for dealers). The effect of the election is that traders pay tax at ordinary rates and include in income gains and losses not yet realized. They can carry losses back for two years and forward for 20 years as net operating losses. Once traders make the market-to-market election, however, it is permanent, unless the Service consents to revocation.

Partnerships, as well as individuals qualifying as traders or commodity dealers, may benefit from making a mark-to-market election when trading generates short-term capital gain and ordinary income. They would not benefit if it generates long-term gain or substantial unrealized income.

Traders can identify securities held for "investment" excluding them from mark-to-market treatment, which preserves any potential income (or loss) as "capital" instead of "ordinary" and pay tax only when they are disposed.

To make a mark-to-market election for a tax year beginning after 1998, a taxpayer must attach an election statement to his tax return for the tax year immediately preceding the election year filed without an extension. Alternatively, a...