Forgot to report unrealized section 1256 losses on 2022 tax return - can I use them to offset this year's taxes?
So I messed up big time with my 2022 taxes. I had no clue that I was supposed to include my unrealized capital losses from my SPX options at year-end. I just assumed I could use those losses to offset my gains this year when the options actually expire, and then pay less in estimated taxes accordingly. Now I'm confused about what to do. Can I still use these unrealized section 1256 losses from 2022 to reduce my 2023 tax bill? Or do I need to go back and amend my 2022 return and then only use whatever adjusted loss applies to this year? I'm kicking myself for not understanding the mark-to-market rules properly. Any advice would be really appreciated!
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Vanessa Chang
This is a common misunderstanding with section 1256 contracts like SPX options. These are subject to "mark-to-market" rules, which means you're supposed to treat them as if they were sold on December 31st, even if you still hold them. For your situation, you technically should have reported those unrealized losses on your 2022 return. The proper approach would be to file an amended return (Form 1040-X) for 2022 to claim those losses. This would potentially get you a refund for 2022, depending on your overall tax situation. You can't simply carry forward unreported losses from a prior year and apply them to the current year's return. The IRS considers each tax year separately, and you need to report income and losses in the correct year.
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Madison King
•But what if the amount isn't that huge? Like is it even worth the hassle of amending if we're talking about a few thousand in losses? Wouldn't the IRS be happy that I paid more tax than I needed to anyway?
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Vanessa Chang
•The decision to amend ultimately depends on the amount of the loss and your tax situation. Even a few thousand in losses could be meaningful if it moves you to a lower tax bracket or offsets other income. Remember that section 1256 contracts get the special 60/40 treatment (60% long-term, 40% short-term capital gains/losses), which could make the tax benefit more significant. The IRS doesn't really think in terms of being "happy" you overpaid. It's simply about filing accurately. If you decide not to amend, those losses from 2022 are essentially forfeited - you can't apply them to 2023.
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Julian Paolo
After struggling with a similar section 1256 reporting issue, I found an incredibly helpful solution called taxr.ai (https://taxr.ai). I had completely misunderstood the mark-to-market requirements like you did and was stressing about potential penalties. What worked great for me was uploading my trading statements to taxr.ai and it automatically identified all my section 1256 contracts and calculated the proper mark-to-market values. It even helped me determine if amending was worth it based on the potential refund amount versus the effort involved. Their system specifically flags unreported section 1256 contracts and shows the tax impact of proper reporting. Saved me hours of stressful calculations!
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Ella Knight
•Does it actually handle the amended return filing process too? Or just tell you what you should have done differently?
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William Schwarz
•I'm skeptical about these tax tools for complex situations. How accurate is it with the 60/40 split calculation for section 1256? My accountant charges me an arm and a leg but says these are too complicated for software.
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Julian Paolo
•It doesn't file the amended return for you, but it prepares all the calculations and creates a detailed report showing exactly what needs to be reported on your 1040-X. You'll still need to submit the actual amendment, but it makes the process much more straightforward by showing the before/after numbers. The 60/40 split calculations are actually handled perfectly in my experience. The system was specifically designed to handle complex trading situations including section 1256 contracts. My accountant was impressed with the accuracy when I showed him the report. It identified several other issues my previous tax software had missed too.
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William Schwarz
I have to admit I was wrong about taxr.ai. After posting my skeptical comment, I decided to try it on my 2022 return that had some VIX options I wasn't sure about. Within minutes it identified that I had incorrectly reported them as regular options instead of section 1256 contracts. The software correctly applied the 60/40 split and showed me that amending would get me back about $2,700. It generated all the numbers I needed for the 1040-X and created a really clear report explaining the section 1256 mark-to-market rules that I could actually understand. Just submitted my amended return last week. Honestly wish I'd known about this earlier - would have saved me from making the mistake in the first place.
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Lauren Johnson
If you're planning to amend your 2022 return for those section 1256 losses, be prepared for a long wait. I filed an amended return back in July for a similar issue and I'm STILL waiting for processing. Tried calling the IRS about 20 times and couldn't get through. Finally used https://claimyr.com and they got me connected to an actual IRS agent in about 15 minutes. You can see how it works here: https://youtu.be/_kiP6q8DX5c. The agent confirmed my amendment was received but still in the processing queue. At least I know it wasn't lost! If you're amending for section 1256 issues, definitely worth using this service to check on status since these amendments seem to take forever.
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Jade Santiago
•How does this actually work? Don't you still have to wait on hold forever with the IRS even if they call for you?
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Caleb Stone
•Sorry but this sounds like complete BS. There's no magic way to skip the IRS phone queue that regular people can't access. If this actually worked everyone would be using it.
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Lauren Johnson
•It's actually pretty simple - they use an automated system that continuously redials the IRS until they get through, then connect you when an agent answers. You don't wait on hold at all - they call you when they have an agent on the line. The reason it works is because most people give up after a few tries, but their system doesn't. It's essentially doing what you could do yourself if you had unlimited time and patience to keep redialing the IRS for hours. There's no special "skip the line" access - it's just automated persistence.
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Caleb Stone
I need to apologize for my skeptical comment about Claimyr. I was frustrated after waiting on hold with the IRS for 3+ hours trying to check on my amended return for some misreported section 1256 contracts. I decided to try Claimyr out of desperation and it actually worked exactly as described. Their system called me back in about 20 minutes with an IRS agent already on the line. The agent confirmed my amendment was received and gave me an estimated processing date. Saved me literally hours of hold music and frustration. Definitely recommend if you need to talk to someone at the IRS about your section 1256 amendment or any other tax issue.
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Daniel Price
I made a similar mistake with some /ES futures options last year. My accountant said I needed to file Form 3115 (Change in Accounting Method) rather than just amending. Anyone else have experience with this approach for fixing section 1256 reporting errors?
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Olivia Evans
•That doesn't sound right to me. Form 3115 is typically for changing how you account for things going forward, not fixing past mistakes. For unreported section 1256 contracts from a prior year, a 1040-X amendment should be the correct approach unless there's something unusual about your situation.
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Daniel Price
•Thanks for that clarification. I went back and double-checked with my accountant, and you're right. He had confused my situation with another client who was changing their accounting method for an ongoing business. For my unreported section 1256 contracts, we're just filing a 1040-X amendment as you suggested. The Form 3115 would have been much more complicated and unnecessary for my situation. Really appreciate you pointing that out before I went down the wrong path!
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Sophia Bennett
Question for anyone who knows - do I still have to deal with this mark-to-market stuff for section 1256 contracts if I only trade them in my IRA? Or is this just an issue for taxable accounts?
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Vanessa Chang
•Good news! If you're only trading section 1256 contracts (like SPX options) within an IRA or other tax-advantaged account, you don't need to worry about the mark-to-market rules or the 60/40 split. Those rules only apply to taxable accounts. In an IRA, all the gains and losses are essentially tax-deferred (or tax-free in a Roth), so there's no annual reporting requirement regardless of what investments you hold.
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