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If an investor sells a stock at a loss and on the next day, he sells a put on the same stock, does the selling of the put trigger the wash rule? Does it matter if the put was sold out of the money?

I live in the United States.

Bob

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There are different schools of thought. You can ask the IRS - and it would not surprise me if you got different answers on different phone calls.

One interpretation is that a put is not "substantially identical" to the disposed stock, therefore no wash is triggered by that sale. However if that put is exercised, then you automatically purchase the security, and that is identical. As to whether the IRS (or your brokerage firm) recognizes the identical security when it falls out of an option, I can't say; but technically they could enforce it because the rule is based on 30 days and a "substantially identical" stock or security.

In this interpretation (your investor) would probably at least want to stay out of the money in choosing a strike price, to avoid exercise; however, options are normally either held or sold, rather than be exercised, until at or very close to the expiration date (because time value is left on the table otherwise). So the key driver in this interpretation would be expiration date, which should be at least 31 days out from the stock sale; and it would be prudent to sell an out of the money put as well, in order to avoid the wash sale trigger.

However there is also a more unfavorable opinion - see fairmark.com/capgain/wash/wsoption.htm where they hold that a "deep in the money" option is an immediate trigger (regardless of exercise). This article is sage, in that they say that the Treasury (IRS) may interpret an option transaction as a wash if it's ballpark to being exercisable. And, if the IRS throws paper, it always beats each of paper, rock and scissors :(

A Schwab article ("A Primer on Wash Sales") says, if the CUSIPs match, bang, wash.

This is the one that they may interpret unfavorably on in any case, supporting Schwab's "play it safe" position: "3. Acquire a contract or option to buy substantially identical stock or securities..." . This certainly nails buying a call. As to selling a put, well, it is at least conceivable that an IRS official would call that a contract to buy!

SO it's simply not a slam dunk; there are varying opinions that you might describe as ranging from "hell no" to "only if blatant." If you can get an "official" predetermination, or you like to go aggressive in your tax strategy, there's that; they may act adversely, so Caveat Taxfiler!

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