Estate of Leon Israel, Jr., Deceased, Barry W. Gray, Executor, and Audrey H. Israel - Page 26

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            and reality of the transaction in issue indicated that much more                          
            was involved than mere "vanishing assets."  In Commissioner v.                            
            Ferrer, 304 F.2d 125, 131 (2d Cir. 1962), revg. and remanding 35                          
            T.C. 617 (1961), the cancellation of a contract entitling the                             
            taxpayer to produce the play "Moulin Rouge" (so that rights to                            
            produce the play could be transferred to another producer) was                            
            treated as a sale or exchange.                                                            
                  In Bisbee-Baldwin Corp. v. Tomlinson, 320 F.2d 929, 931-932                         
            (5th Cir. 1963), a cancellation fee was treated as arising from a                         
            sale or exchange where, in substance, the underlying mortgage                             
            servicing contract was transferred to a third party.                                      
                  That is the situation before us.  Particularly with regard                          
            to the loss legs that were "canceled" and immediately replaced,                           
            little, if anything, "vanished" upon Holly’s closing or settling                          
            the loss legs.  To the contrary, Holly and the Holly partners                             
            stayed around, continued to participate in the straddle                                   
            transactions, postponed even paying the loss until the very end                           
            of the year with funds borrowed by Holly, closed or settled the                           
            offsetting gain leg of the forward contracts just after the new                           
            year, and used the gain to repay the bank.  The last thing the                            
            investors would have wanted -- upon the "cancellations" in                                
            question -- is to vanish or disappear from the rest of these                              
            straddle transactions, the consequence of which is that the                               
            investors might actually have had a real loss to pay.                                     






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