26 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.Page: Previous 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 Next
Last modified: May 25, 2011