- 16 - (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 ofPage: Previous 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Next
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