Trading Entity Setup & Tax Reporting 101

Whether you’re a solo trader or running a trading business, staying on top of taxes is key to both financial success and staying compliant. Navigating capital gains, wash sales, trader tax status (TTS), and the maze of IRS forms can get complicated—especially for entities like family offices, LLCs, partnerships, and hedge funds. This starter guide breaks down how trading firms can streamline their tax reporting while staying on the right side of IRS rules. Understanding these tax laws not only helps you manage liabilities but also ensures you’re taking advantage of every deduction and exemption available.

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Here’s a breakdown of the sections in this guide:

• Business taxation vs. individual taxation

• Benefits of business taxation

• How to qualify as a trading business and set one up

• Preparing taxes for business entities

When discussing tax strategies for trading businesses, it’s important to differentiate between individual tax reporting and business-level tax compliance. For example, while Form 8949 is a key document for individual traders reporting capital gains and losses, it’s often not required for trading businesses structured as LLCs, S-Corps, or C-Corps that have elected Mark-to-Market (MTM) accounting under Section 475(f). Instead, these businesses report gains and losses as ordinary income on Form 4797, rather than as capital gains on Form 8949. This election can provide significant tax benefits, such as avoiding the wash sale rule and allowing for unlimited loss deductions.

What is Form 8949?

Form 8949 is used to report the sales and dispositions of capital assets, including stocks, options, and futures contracts. It plays a critical role in determining taxable capital gains and losses for individual traders, ensuring that all transactions are properly documented and reported to the IRS.

Business Taxation vs. Individual Taxation

The taxation of a trading business depends on its legal structure and how it elects to report income. Unlike individual traders who report capital gains and losses using Form 8949 and Schedule D, business entities that have made a section 475(f) Mark-To-Market election do not categorize trading activity as capital gains. This is treated as ordinary income (not subject to self-employment tax).

Instead:

• Sole Propietors, LLCs, S-Corps, and C-Corps file business tax returns that classify income differently.

• Traders with Trader Tax Status (TTS) and Mark-to-Market (MTM) elections do not report capital gains—they report trading profits as ordinary business income using Form 4797 (Sales of Business Property) instead.

Since many trading businesses elect MTM accounting to treat gains and losses as business income rather than capital gains, Form 8949 is bypassed entirely.

Form 8949 Is for Capital Gains, Not Business Income

Form 8949 is primarily used by investors and non-MTM traders to report capital gains and losses. However, a trader operating as a business entity typically:

• Uses Form 4797 for ordinary gains and losses under MTM election.

• Reports income on Form 1065 (Partnerships), Form 1120-S (S-Corps), or Form 1120 (C-Corps) instead of Schedule D.

• Passes income to members/shareholders via Schedule K-1 in multi-member LLCs or S-Corps.

This means that trading businesses generally do not use Form 8949 unless they have non-MTM investment holdings that generate capital gains.

Benefits of Business Taxation

1. Expanded Business Expense Deductions

By operating as a trading business entity (such as an LLC, S-Corp, or C-Corp), traders can deduct a broader range of business expenses that are not available to individual investors under IRS rules. These deductions include:

• Home office expenses (if exclusively and regularly used for trading).

• Trading software and market data subscriptions.

• Internet and data fees.

• Computer hardware and office equipment.

• Education, coaching, and professional development (directly related to trading).

• Legal, accounting, and tax preparation services.

• Business-related travel and research expenses.

Since trading is treated as a business rather than investment activity, these deductions help lower taxable income and reduce the overall tax burden.

2. Avoiding Capital Gains Tax Treatment

Without an MTM election, all trades are subject to capital gains tax. This means:

• Short-term capital gains (assets held for one year or less) are taxed at ordinary income rates, which can be as high as 37 percent.

• Long-term capital gains (assets held for more than one year) are taxed at lower rates of 0, 15, or 20 percent.

By electing MTM and using a business entity:

• All trading income is taxed as ordinary business income on Form 4797, rather than as capital gains, eliminating the need for Form 8949 and Schedule D.

• Losses are fully deductible against other forms of income, instead of being limited to the $3,000 annual capital loss deduction applicable to investors.

• There is no need to track holding periods, avoiding the complexity of differentiating between short-term and long-term capital gains.

• The wash sale rule does not apply to traders using MTM, allowing for more flexible trading strategies without the risk of disallowed losses.

• Income may qualify for the 20% QBI deduction if structured as an S-Corp (subject to taxable income limits and IRS rules).

• Avoids self-employment tax, since trading profits are not subject to FICA taxes (unless structured as an entity paying W-2 wages).

For high-volume traders, this approach simplifies tax calculations and prevents unfavorable capital gains tax treatment.

3. Reducing Self-Employment Taxes with an S-Corp

For traders operating through an S-Corp, there is an opportunity to reduce self-employment tax obligations.

• Unlike traditional businesses, trading income is not subject to self-employment tax, regardless of entity structure.

• A portion of the income can be classified as distributions rather than salary, which is not subject to self-employment tax.

• This is particularly advantageous for traders generating consistent profits, as structuring compensation in this way helps minimize tax liability.

• Having a salary enables contributions to a solo 401(k), providing a powerful retirement savings and tax deferral strategy.

For example:

A sole proprietor trader earning $200,000 in trading profits owes $0 in self-employment tax because capital gains and MTM ordinary income are not subject to SE tax.

By structuring as an S-Corp, the trader could take $100,000 as salary (subject to payroll taxes) and $100,000 as distributions (exempt from self-employment tax), reducing overall tax liability.

Additionally, with a $100,000 salary, the trader can contribute to a solo 401(k):

• Employee contribution: Up to $23,000 in 2024 ($30,500 if age 50+).

• Employer profit-sharing contribution: Up to 25% of W-2 salary (i.e., $25,000 on a $100,000 salary).

• Total potential contribution: $66,000 (or $73,500 if age 50+) for 2024.

By structuring as an S-Corp and contributing to a Solo 401(k), a trader can generate significant tax savings and long-term tax-deferred growth:

• Solo 401(k) Contribution: $48,000 (Employee deferral + Employer profit-sharing).

• Immediate Tax Savings (401(k) Deduction): $19,200 (at a 40% marginal tax rate).

• Payroll Taxes Paid (Employer + Employee FICA): $15,300.

• Total Immediate Tax Savings: $26,850 (401(k) tax deferral + payroll tax deduction).

Projected Tax-Deferred Growth (20 Years @ 8% Return): $223,725.

4. Legal Protection and Business Credibility

Forming an LLC, S-Corp, or C-Corp provides additional benefits beyond tax efficiency.

• Liability Protection: A properly structured entity separates personal assets from business liabilities, offering protection in case of legal disputes.

• Business Credibility: Operating as an official business can improve access to business credit, brokerage account benefits, and potential investors.

• Growth Potential: A trading business entity provides flexibility for tax planning, business scaling, and even offering employment benefits in the future.

For professional traders looking to expand operations, these factors can be just as important as the tax savings.

5. Simplified Tax Reporting

For traders executing a high volume of trades each year, electing Mark-to-Market (MTM) accounting or trading through an entity eliminates the need for detailed transaction reporting on Form 8949. Instead of tracking individual trade-by-trade capital gains and losses, all trading activity is reported as ordinary income on Form 4797, reducing administrative burdens and simplifying tax preparation.

Additionally, eliminating Form 8949 minimizes the risk of IRS audits related to wash sale violations or capital gains misreporting, as MTM traders are exempt from wash sale rules. This streamlined reporting process allows traders to focus more on their strategy and profitability, rather than dealing with complex tax compliance.

How to Qualify as a Trading Business and Set One Up

Establishing a trading business involves meeting IRS requirements for TTS and choosing the right business structure. Here’s a simplified guide to getting started.

1. Qualifying as a Trading Business (Trader Tax Status)

To be recognized as a trading business rather than an investor, the IRS requires that you meet certain TTS criteria. While there are no strict rules, traders typically need to demonstrate:

• Frequent Trading Activity: At least 720 trades per year (~3 trades per day) is a common benchmark.

• Short Holding Periods: Most trades should be intraday or held for only a few days, rather than long-term investments.

• Consistent and Substantial Trading: Trading should occur on most trading days, not just occasionally (75% of open market days).

• Intent to Make a Living: The trading business should be operated with the goal of generating primary or significant income, not as a hobby.

Even if a trader meets these criteria, TTS is not an official IRS election—it must be determined based on facts and circumstances. Filing as a sole proprietor with TTS allows deductions on Schedule C, but electing Mark-to-Market (MTM) requires a separate Section 475 election.

2. Choosing a Business Structure

Once you qualify for TTS, setting up a formal business entity provides tax and liability benefits. The most common structures for trading businesses are:

Sole Proprietor (Default Option, No Entity)

• No setup required, as trading activity is reported under the individual’s name.

• Limited deductions compared to formal business structures.

• Tax Treatment:

  • Without MTM Election:

    • Capital Gains Taxation: Profits are taxed as capital gains—short-term gains (assets held one year or less) are taxed at ordinary income rates, while long-term gains (assets held more than one year) benefit from preferential tax rates.

    • Capital Loss Limitations: Deductible capital losses are limited to $3,000 per year against ordinary income, with the ability to carry forward excess losses to future years.

    • Wash Sale Rules: Losses on sales of securities may be disallowed under the wash sale rule if the same or substantially identical securities are purchased within 30 days before or after the sale, complicating loss recognition.

  • With MTM Election:

    • Ordinary Income/Loss Treatment: All gains and losses from trading activities are treated as ordinary income or losses, allowing full deduction of trading losses against other income without the $3,000 limitation.

    • Exemption from Wash Sale Rules: The wash sale rule does not apply, simplifying tax reporting and ensuring that all losses are deductible.

    • Annual Mark-to-Market Adjustment: At year-end, all open positions are "marked to market", with unrealized gains and losses recognized for tax purposes as if the positions were sold at fair market value.

Limited Liability Company (LLC)

• Provides legal liability protection for personal assets.

• Can be taxed as a sole proprietorship, partnership, S-Corp, or C-Corp, offering flexibility.

• Single-member LLCs are taxed like sole proprietors unless another election is made.

S-Corporation (S-Corp)

• Allows traders to pay themselves a salary and take the remaining profits as distributions, reducing self-employment tax.

• Must file Form 1120-S and issue Schedule K-1 for profit distribution.

C-Corporation (C-Corp)

• Suitable for traders looking to retain earnings inside the company.

• Subject to corporate tax (21%), but avoids self-employment tax.

• Best for traders reinvesting capital rather than withdrawing profits.

• Double Taxation Risk: If profits are withdrawn as dividends, they are subject to corporate tax (21%) and personal dividend tax (up to 20% + 3.8% NIIT if applicable), potentially making the tax burden higher than in an S-Corp or sole proprietorship.

• No Pass-Through Losses: Trading losses in a C-Corp cannot be deducted on the owner's personal tax return, unlike with an S-Corp or sole proprietorship.

3. Setting Up Your Trading Business

Follow these steps to form a legal trading business

1. Register Your Business

• Select and register a unique name with your state’s Secretary of State.

• File Formation Documents - Submit Articles of Organization (for an LLC) or Articles of Incorporation (for an S-Corp or C-Corp).

• Appoint a Registered Agent – Most states require a registered agent to receive legal documents on behalf of the business.

2. Obtain an EIN (Employer Identification Number)

• Apply for an EIN from the IRS (free via IRS.gov).

• Needed for:

  • Opening a business bank account

  • Establishing a business brokerage account

  • Filing Business Tax Returns

3. Elect Tax Status (If Applicable)

• Default: Single-member LLCs are taxed as sole proprietors (Schedule C), and multi-member LLCs are taxed as partnerships.

• Optional: File Form 2553 to elect S-Corp taxation.

• Optional: File Form 8832 if electing C-Corp status.

• Optional: Section 475(f) Mark-To-Market Accounting

  • for a newly formed entity, the Mark-to-Market (MTM) election does not require attaching an election statement to the prior year's tax return. Instead, the election is documented in the entity’s books and records by the entity’s first tax year-end.

  • If an existing taxpayer (individual or business) wants to elect MTM accounting, they must file an election statement with their prior year’s tax return or extension by April 15 of the election year.

  • File Form 3115 (Application for Change in Accounting Method) with the year of election tax return.

4. Open Business Financial Accounts

• Open a business checking account to keep trading finances separate from personal funds. Tack all business expenses here.

• Set up a business brokerage account in the entity’s name for trading operations.

5. Maintain Proper Records

• Track all trades, expenses, and business costs – Maintain detailed records for tax and compliance purposes.

• Use Accounting & Tax Software – Platforms like TraderFyles can automate capital gains/loss tracking, wash sales, and tax reporting.

• Maintain IRS Compliance – If Trader Tax Status (TTS) is claimed, proper documentation strengthens eligibility.

6. File Business Tax Returns

Entity-Specific Filing Requirements:

• C-Corp (Form 1120) – Pays a flat 21% corporate tax.

• S-Corp (Form 1120-S) – Pass-through taxation; requires reasonable salary if owner draws income.

• LLC (Form 1065 for Partnerships or Schedule C for Single-Member LLCs) – Reported based on tax election.

• MTM Traders (Form 4797) – If MTM election is made, trades are reported as ordinary income (Form 4797) rather than capital gains on Form 8949/Schedule D.

Preparing Taxes for Business Entities

Business entities engaged in trading can fall into different tax categories based on their structure and trading activities. Proper classification is critical for determining tax obligations, deductions, and compliance requirements.

Business Income (Active Trading Entities)

Trading businesses that qualify for TTS are considered active businesses rather than passive investors. This classification provides substantial tax advantages, including:

• Expanded Business Deductions – TTS traders can deduct a wide range of ordinary and necessary business expenses, including:

  • Trading software and market data subscriptions

  • Home office expenses (if used exclusively for trading)

  • Office rent and utilities

  • Professional services (accounting, legal, tax preparation)

• Mark-to-Market (MTM) Election (IRC Section 475(f)) – Traders who elect MTM accounting gain additional tax benefits:

  • Ordinary Income Treatment – Converts trading gains and losses into ordinary income, avoiding capital gains tax treatment.

  • Full Deduction of Trading Losses – Unlike investors, who face a $3,000 annual capital loss limitation, MTM traders can deduct all trading losses against other income (including W-2 or business income).

  • Exemption from Wash Sale Rules – MTM traders are not subject to wash sale rules, simplifying tax reporting and ensuring losses are fully deductible.

  • No Holding Period Restrictions – MTM traders do not need to track short-term vs. long-term capital gains, eliminating complexity in tax reporting.

Entities structured as LLCs, S-Corps, or C-Corps often elect MTM accounting to streamline tax filing and maximize deductible expenses.

Mixed Income (Partnerships and Family Offices)

Some trading businesses manage a mix of investment and trading income, particularly in:

• Partnerships (such as hedge funds or trading firms with multiple members)

• Family Offices (managing wealth across multiple family members)

• Proprietary trading firms (firms trading firm capital rather than client funds)

Because these entities engage in both active trading and long-term investing, they often face dual tax treatment:

• Investment gains (from long-term holdings or non-trading assets) are taxed as capital gains and reported on Schedule D.

• Active trading profits are treated as ordinary business income and reported using Form 4797 (if electing MTM) or partnership/corporate tax returns.

Clear separation of investment and business accounts is crucial to ensure proper tax reporting. Co-mingling investment and trading funds can create compliance risks.

Investment Income (Passive Trading or Holding Companies)

Some business entities, particularly LLCs that have not elected TTS, may still be classified under investment income taxation, which means:

• Capital Gains Taxation – Profits and losses are reported as capital gains (subject to short-term and long-term tax rates).

• Capital Loss Limitations – Losses are subject to the $3,000 annual capital loss limit, unless the entity qualifies for TTS and elects MTM.

• Certain deductions, such as office expenses and professional fees, may not be fully deductible.

• Long-Term Tax Benefits – Entities managing long-term investment portfolios may prefer this classification to benefit from the lower long-term capital gains tax rates (0%, 15%, or 20%).

Entities that do not actively trade and instead manage long-term investment portfolios may prefer this classification to benefit from lower long-term capital gains tax rates.

This guide provides a general overview of tax preparation for trading businesses. Because tax classification and reporting can be complex, consulting a professional tax advisor is recommended to:

• Ensure compliance with IRS regulations

• Maximize tax efficiency based on entity structure and trading activity

• Maintaining clear distinctions between investment and trading activities

Conclusion

Navigating tax reporting for trading businesses requires a solid understanding of tax classifications, entity structures, and IRS compliance rules. By qualifying for Trader Tax Status and structuring as an LLC, S-Corp, or C-Corp, traders can take advantage of key tax benefits, including expanded deductions, simplified reporting, and reduced tax liability.

With the right strategies, tools, and professional support, trading businesses can streamline tax filings, optimize their financial structure, and stay compliant with IRS regulations. Leveraging automation tools like TraderFyles can further simplify record-keeping, tax calculations, and reporting, ensuring a seamless tax season and long-term financial efficiency.

Need help with setting up an LLC? Book a free consultation call.

Useful Resources & References

IRS Forms & Publications

• Form 8949: Sales & Dispositions of Capital Assets

• Form 4797: Sales of Business Property

• Form 1065: Partnership Tax Returns

• Form 1120-S: S-Corp Tax Returns

• IRS Guide to Trader Tax Status (TTS)

Trader Tax & Compliance Resources

• TraderFyles: Tax Automation for Traders

This information is for educational purposes only and is based on information that is provided by Brian Rivera, CPA, owner of Trader Tax CPA, LLC, and Trader Fyles Inc. Tax laws and regulations are subject to change. This article does not constitute tax advice. Please consult with a qualified tax professional for personalized guidance.