I.C. Hemmings and Sue B. Hemmings, et al. - Page 16

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          (the transactions were "shams" and/or were not "bona fide").  Mr.           
          and Mrs. Hemmings filed petitions in which it is alleged that the           
          transactions were not shams and were bona fide.  In the answers,            
          respondent denied these allegations.  Once section 6013(e) was              
          raised, the positions of the parties underwent a radical                    
          metamorphosis.                                                              
               On one hand, Mrs. Hemmings argues that these transactions              
          are similar to those encountered in Freytag v. Commissioner, 89             
          T.C. 849 (1987), affd. 904 F.2d 1011 (5th Cir. 1990), affd. on              
          other issues 501 U.S. 868 (1991), where the Court determined that           
          transactions involving straddles of Ginnie Maes and other                   
          financial instruments were illusory, fictitious, and not bona               
          fide.  Respondent, on the other hand, does not seek to                      
          characterize the transactions, but rather takes the position that           
          Mrs. Hemmings has not shown that the transactions are of the                
          nature of those discussed in Freytag.                                       
               In Freytag the Court found that the First Western Government           
          Securities (First Western) trading program involving straddles of           
          forward contracts was not bona fide.  This finding was based on a           
          number of "gremlins" in the program.  Among the more salient                
          gremlins were the following:  The customers' out-of-pocket losses           
          were limited to the amounts paid; the amounts paid to the so-               
          called margin account determined the fees paid; the starting                
          point for the alleged trading program was the amount of tax                 
          losses that were requested by the customer; the lack of                     




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