On December 22, 2017, The Tax Cuts and Jobs Act was signed into law. The information in this article predates the tax reform legislation and may not apply to tax returns starting in the 2018 tax year. You may wish to speak to your tax advisor about the latest tax law. This publication is provided for your convenience and does not constitute legal advice. This publication is protected by copyright.

Tax law allows you as an investor to offset capital gains with capital losses, and if the losses exceed the gains, you can deduct losses up to a maximum of $3,000 ($1,500 if filing married separate) for the tax year. For this reason, investors frequently review their securities portfolio at year’s end searching for stocks and other securities whose sales will result in a capital loss. This allows them to minimize their gains or maximize their losses for the year.

The wash sale rules could spoil this planning strategy, however. Under these rules, a loss is disallowed if the security sold at a loss is repurchased within 30 days. A loss will also be disallowed if the investor buys the same security 30 days before the sale. The IRS definition of a wash sale is: “A sale that occurs when you sell or otherwise dispose of stock or securities at a loss, and within 30 days before or after the sale or disposition, you buy substantially identical stock or securities.”

This rule can affect the investor who may actually wish to hold a particular security, but only sells to take advantage of a loss position intending to buy the same security back at a later date. It can also affect “day traders” who buy and sell the same security frequently during the year. Taxpayers who redeem shares of a mutual fund at a loss and within the 30 days before or after the redemption receive a dividend from the fund that is reinvested to purchase more shares are also subject to the wash sale limitation.

When wash sales do occur, the tax basis of the replacement stock is increased by the amount of the loss that was disallowed, so when you sell the replacement stock you will be able to take advantage of losses incurred in the wash sale.

 Where a taxpayer sells securities at a loss and purchases substantially identical securities in the taxpayer’s IRA or Roth IRA, the wash sale rules apply to such a sale and the loss is disallowed.  The basis of the securities in the IRA is increased by the amount of the loss (but the basis of the IRA itself is not increased).

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