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Help with Schedule K-1, 1099-B and Section 1256 Gains for commodity futures - double taxation?

I'm stuck in a Section 1256 nightmare and could use some advice. I've done extensive research including poring over Schedule K instructions (probably missing something obvious) and even visited a tax pro who seemed completely lost on this issue. Here's my situation: Year 1 - I bought shares in a publicly traded limited partnership (USO) that deals with commodity futures through my Fidelity account. Year 2 - USO sent me a Schedule K-1 for Year 1 showing my unrealized gains, which I reported using the 60-40 split tax treatment since commodity futures fall under Section 1256 Contracts and are marked-to-market. Year 2 - I sold my USO position. After year-end, I received another Schedule K-1, which I handled like before. However, Fidelity also included the sale on my 1099-B, using my original cost basis and categorizing it with my regular long-term security transactions - NOT in any Section 1256 category. I called Fidelity thinking they made a mistake and should have listed it under Section 1256, but they insisted they have to report the sale with a 1099-B just like any other ETF. My questions: 1. Is Fidelity wrong? Should they correct my 1099 to show the security under a Section 1256 classification? 2. Do I need to adjust the 1099-B gain using Form 8949? 3. Am I mistaken in thinking I shouldn't be taxed TWICE - once under Sec 1256 rates AND again under normal capital gains rates? Any help would be greatly appreciated as I'm completely confused at this point.

I got audited last year on this exact issue with a different commodity futures partnership! My advice: keep EXTREMELY detailed records of your basis adjustments. The IRS computer system often flags returns where the basis reported on Form 8949 differs significantly from what's on the 1099-B, even when you use the adjustment codes correctly. The auditor initially thought I was trying to avoid taxes until I showed my spreadsheet tracking each year's: - K-1 income by category (especially Section 1256 gains) - Distributions received - Basis adjustments calculated - Supporting documentation After reviewing everything, the auditor agreed my calculations were correct. But save yourself the headache and document EVERYTHING about your basis calculations!

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Did the IRS give you any specific form or format they want to see for tracking partnership basis? I've heard some people attach a statement to their return explaining the basis adjustment, but I'm not sure if that's required or helpful.

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Based on everyone's helpful responses, I want to add one more critical point that saved me significant time and potential errors: always request the "Partnership Basis Schedule" or "Outside Basis Statement" from the partnership if they provide one. Some partnerships like USO will provide a detailed basis tracking statement upon request that shows your cumulative basis adjustments from year to year. This can be incredibly helpful for complex situations involving multiple years of Section 1256 gains and distributions. If your partnership doesn't provide this, I highly recommend creating your own tracking spreadsheet starting from day one. Include columns for: - Beginning basis each year - K-1 income items (by line) - K-1 loss items (by line) - Distributions received - Ending basis This becomes invaluable when you sell, especially for partnerships with complex activities like commodity futures. It also provides clear documentation if you ever face an audit on the basis adjustments you report on Form 8949. The key is being proactive about tracking rather than trying to reconstruct everything when you sell years later!

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Darcy Moore

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This is excellent advice about requesting the Partnership Basis Schedule! I wish I had known about this when I first started dealing with USO. I've been manually tracking everything in Excel, but having an official statement from the partnership would have saved me so much time and given me more confidence in my calculations. For anyone else reading this thread - do partnerships typically charge a fee for these basis statements? And should I request this annually or just when I'm planning to sell? I'm wondering if it's worth getting one each year to verify my own tracking is correct, especially given how complex the Section 1256 treatment makes everything. Also, does anyone know if other commodity futures partnerships besides USO provide these statements? I'm looking at potentially investing in some other futures-based partnerships but want to make sure I can get proper documentation before I get into another basis tracking nightmare!

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Leslie Parker

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ngl that taxr.ai thing mentioned above is clutch. used it last week and it broke down everything step by step. way better than trying to decode these transcripts myself lol

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Sergio Neal

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fr? might have to check it out

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Leslie Parker

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do it! best dollar i ever spent no cap

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Had the exact same situation last year - 570/971 codes appeared after my EIC processed. The waiting is definitely stressful but in my case it was just routine verification. They wanted to confirm my child's social security number matched their records. Got my notice about 3 weeks after the 971 code date, sent back the requested docs, and refund hit my account about 6 weeks later. Keep checking your transcript for updates and respond to any IRS correspondence ASAP. The delay sucks but it's pretty standard for EIC claims nowadays.

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Caesar Grant

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Has anyone actually read the full IRS 2023-2 notice? It's super dense but from what I understand, it's addressing valuation issues more than step-up basis directly? I'm confused about why everyone is saying it changes step-up basis rules...

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Lena Schultz

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I read through most of it and you're right - it's primarily focused on valuation methods for certain assets in estates and trusts, particularly addressing discount valuations in family-owned entities. It doesn't directly change the rules about step-up basis eligibility, but it could affect how assets in certain trusts are valued, which indirectly impacts tax calculations. I think people are conflating IRS 2023-2 with general concerns about irrevocable trusts and step-up basis. The fundamental issue with irrevocable trusts and step-up basis predates this notice.

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Isaac Wright

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You're absolutely right to be confused - trust language can be incredibly difficult to parse! Based on what others have shared here, it sounds like the key is figuring out whether your father-in-law's irrevocable trust has any provisions that would still keep those properties in his taxable estate for step-up purposes. From what I'm gathering from this discussion, you'll want to look for things like "power of substitution" clauses or other retained powers in the trust documents. But honestly, this seems like something where you really need a professional to review the actual trust language - the specific wording apparently makes a huge difference. Given the $6.5M in assets involved, it might be worth getting a proper estate attorney to review the trust documents and explain your options in plain English that your father-in-law can understand. The cost of that consultation could save significant tax dollars down the road if there are planning opportunities you're not seeing.

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Has anyone filed for the foreign tax credit (Form 1116) as a non-resident alien? I have dividends from ADRs in my Robinhood account that had some foreign tax withheld. Can I still claim this credit?

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Yes, you can absolutely claim the foreign tax credit on Form 1116 as a non-resident alien for foreign taxes withheld on dividends from ADRs. Make sure you categorize it under "Passive category income" on the form. Just note that you'll need to have the total amount of foreign tax paid documented on your 1099-DIV (Box 7). The credit is limited to the US tax liability on that same income, so you won't get more back than what you would owe on those dividends to the US.

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As someone who went through the exact same situation last year (NRA grad student with wash sales), I can definitely relate to the frustration! Here's what worked for me: I ended up using the IRS Free File program through FreeTaxUSA, which supports 1040-NR and handles wash sales correctly. The key thing is making sure your capital gains go on Schedule NEC (Not Effectively Connected income) rather than Schedule D - most regular tax software gets this wrong for non-residents. For the wash sale reporting, you'll still report the transactions as shown on your 1099-B, but the software should automatically adjust the basis and disallow the loss per IRS rules. The good news is that as a non-resident, you're only taxed on your US-source income at capital gains rates (0%, 15%, or 20% depending on your total income). A few tips: - Keep all your 1099s and any foreign tax documents - If you have treaty benefits from your home country, make sure to claim them - Consider e-filing if possible - it's much faster than paper filing Don't let those expensive services take advantage of your situation. The free options can absolutely handle this if you're willing to spend a bit of time learning the process!

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I work in bookkeeping and have dealt with this exact situation many times. Here's what I recommend: prepare everything in December - complete the form, write the check dated 12/31/2022, and have the envelope ready to go. Then mail it on January 1st, with the signature dated 12/31. This way, your accounting books close cleanly in 2022 (check dated and recorded in December), but you're not technically filing before the quarter ends. The IRS generally looks at postmark dates, not signature dates, when determining timely filing.

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Aria Park

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Would it work to use the electronic filing option instead? That way everything could be prepared in December but submitted electronically on January 1st?

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Lucas Bey

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I've been dealing with quarterly tax filings for years as a small business owner, and I completely understand your desire to keep everything clean within the calendar year. However, I'd strongly advise against filing before December 31st, even if you're certain no more wages will be paid. The issue isn't just about IRS flags or suspicion - it's about the legal certification you're making when you sign the form. By signing, you're certifying under penalty of perjury that the information is "true, correct, and complete" for the entire quarter. Since the quarter hasn't ended yet, you technically can't make that certification honestly. Here's what I do in similar situations: I prepare everything in December - calculate all the numbers, fill out the form completely, and even write the check. But I wait until January 1st to sign and mail it. This gives me the peace of mind that my accounting is done for the year, but I'm not creating any compliance issues with the IRS. The postmark date is what matters for timely filing, not when you prepared the paperwork. This approach has worked well for me for over 5 years without any issues.

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