Estate of Leon Israel, Jr., Deceased, Barry W. Gray, Executor, and Audrey H. Israel - Page 27

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                  More than anything else, the investors wanted to stay                               
            around, to be a part of the straddle transactions as they came to                         
            their predictable, inevitable, intended, and planned closing.  We                         
            agree with the analysis set forth in our prior opinion in Stoller                         
            v. Commissioner, 60 T.C.M. (CCH) at 1566, 1990 T.C.M. (P-H) at                            
            90-3220 --                                                                                

                  the substance of the alleged cancellation transactions [will                        
                  be determined] by looking to the entire spread arbitrage                            
                  transaction and the economic consequences sought by the                             
                  parties.  * * *  When * * * [the taxpayer] requested the                            
                  cancellation of a contract or series of contracts, it was                           
                  part of an ongoing straddle and was for the purpose of                              
                  changing Holly's window of risk.  He did not want to                                
                  terminate Holly's straddle with AGS, he just wanted to                              
                  change the delivery date of one leg and accelerate the loss                         
                  to be recognized by Holly and its partners. * * * [Citation                         
                  omitted.]                                                                           

                  Respectfully, we also believe that in Stoller v.                                    
            Commissioner, 994 F.2d at 858, the Court of Appeals for the                               
            District of Columbia Circuit erred in its interpretation of the                           
            1981 legislative history accompanying the addition of section                             
            1234A to the Internal Revenue Code.  Id.  The legislative history                         
            concerning section 1234A states the following:                                            

                                            Present Law                                               
                     The definition of capital gains and losses in                                    
                  section 1222 requires that there be a "sale or                                      
                  exchange" of a capital asset.  Court decisions have                                 
                  interpreted this requirement to mean that when a                                    
                  disposition is not a sale or exchange of a capital                                  
                  asset, for example, a lapse, cancellation, or                                       
                  abandonment, the disposition produces ordinary income                               
                  or loss. * * * [See Leh v. Commissioner, 260 F.2d 489                               




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