- 12 - Mr. Kelly contends that his options trading activity was sufficiently regular, substantial, and time-consuming to constitute a trade or business for Federal income tax purposes, so that the losses arising from the activity qualify for ordinary treatment. This argument confuses a necessary with a sufficient condition. Buying and selling securities on an exchange must constitute a trade or business in order for the securities to qualify for the exception to capital asset treatment. But a taxpayer who meets this trade or business requirement may be either a trader or a dealer. Unless he is a dealer, the securities he holds in connection with his business are capital assets. Laureys v. Commissioner, 92 T.C. 101, 136-137 (1989); King v. Commissioner, 89 T.C. 445, 457-458 (1987); Polacheck v. Commissioner, 22 T.C. 858, 862 (1954); Kemon v. Commissioner, 16 T.C. 1026, 1032-1033 (1951). The distinction between trader and dealer turns on whether the taxpayer's business activities have the characteristics specified in section 1221(1). The parties have stipulated that Mr. Kelly's options trading lacked these characteristics: Mr. Kelly did not hold his options as inventory; he did not sell to customers; he performed no merchandising function. Therefore, if he was engaged in the business of buying and selling options, it was as a trader rather than a dealer, and the options would not constitute property described in section 1221(1). Kemon v. Commissioner, supra;Page: Previous 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Next
Last modified: May 25, 2011