Theodore A. Andros and Joan B. Andros - Page 44

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              any loss from such disposition shall be allowed for the                 
              taxable year of the disposition if such loss is incurred                
              in a trade or business, or if such loss is incurred in a                
              transaction entered into for profit though not connected                
              with a trade or business.                                               
                   (b) Loss Incurred in a Trade or Business.--For                     
              purposes of subsection (a), any loss incurred by a                      
              commodities dealer in the trading of commodities shall be               
              treated as a loss incurred in a trade or business.                      
              Accordingly, a taxpayer, other than a commodities dealer,36 is          
         not eligible to deduct a loss on the disposition of a leg in a               
         straddle, unless the taxpayer proves that the loss was incurred “in          
         a transaction entered into for profit”.  DEFRA sec. 108 as amended.          
         To meet this requirement the taxpayer must establish that he entered         
         into the straddle transaction primarily for profit.  Ewing v.                
         Commissioner, 91 T.C. 396, 416-417 (1988), affd. without published           
         opinion 940 F.2d 1534 (9th Cir. 1991); Boswell v. Commissioner, 91           
         T.C. 151, 158-159 (1988).  To meet the primarily-for-profit test,            
         the investor need not be unaware of the tax consequences that might          
         ensue from his transactions.  However, where an investor has a               
         profit motive as well as a tax motive for entering into the                  
         investment, the profit motive must be of first importance.                   
              Because petitioner’s investments were made through Tandrill,            
         the existence of a profit motive must be determined at the                   


               36   Neither respondent nor petitioners contend that                   
          petitioner or Tandrill was a commodities dealer for purposes of             
          the profit motive presumption of DEFRA sec. 108(b) as amended.              
          See Kovner v. Commissioner, 94 T.C. 893 (1990).                             





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