35
BEGHE, J., concurring: Having joined the majority opinion, I
write separately to respond to some of the strictures in the
dissenting opinion.
With all due respect, the author of the dissenting opinion and
the Court of Appeals for the District Columbia Circuit in Stoller
v. Commissioner, 994 F.2d 855 (D.C. Cir. 1993), revg. in part
T.C. Memo. 1990-659, have not paid proper heed to the body of
judge-made law in the Second and Third Circuits, as well as this
Court, that treats even true cancellations of some types of
contracts as capital gain or loss transactions; this is just
another area in which the capital character of the asset and
other circumstances properly focus the analysis upon the nature
of the contract rights in question, rather than merely upon the
structure of the transaction as a "sale or exchange", as opposed
to a cancellation, termination, or relinquishment. See, e.g.,
Commissioner v. Ferrer, 304 F.2d 125 (2d Cir. 1962), revg. in
part and remanding 35 T.C. 617 (1961); Commissioner v. McCue
Bros. & Drummond, Inc., 210 F.2d 752 (2d Cir. 1954), affg. 19
T.C. 667 (1953); Commissioner v. Golonsky, 200 F.2d 72 (3d Cir.
1952), affg. 16 T.C. 1450 (1951); see also Sirbo Holdings, Inc.
v. Commissioner, 509 F.2d 1220 (2d Cir. 1975), affg. 61 T.C. 723
(1974); Maryland Coal & Coke Co. v. McGinnes, 225 F. Supp. 854
(E.D. Pa. 1964), affd. 350 F.2d 293 (3d Cir. 1965).
Other special circumstances present in the cases at hand
provide a principled basis for looking beyond the conceded facts
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