Estate of Leon Israel, Jr., Deceased, Barry W. Gray, Executor, and Audrey H. Israel - Page 36

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          that the transactions in question were bona fide, had economic              
          substance, and were entered into for profit--all of which only go           
          to the economics of the amount of gain or loss--to recognize the            
          also inescapable facts that Holly and AGS were related parties              
          with no adverse interests insofar as the treatment of the closing           
          transactions as offsets or cancellations was concerned.  The                
          custom or usage of the trade among dealers and traders in forward           
          contracts and the underlying commodities, which Holly and AGS               
          arbitrarily ignored, is that true cancellations are only employed           
          to correct mistakes, not to close out forward contracts entered             
          into and disposed of in the ordinary course of business.1  See              
          Brown v. Commissioner, 85 T.C. 968, 994 (1985), affd. sub nom.              
          Sochin v. Commissioner, 843 F.2d 351 (9th Cir. 1998); Stoller v.            
          Commissioner, T.C. Memo. 1990-659, 60 T.C.M. (CCH) 1554, 1566,              
          1990 T.C.M. (P-H) par. 90,659, at 3220-90; majority op. p. 10.              



          1Another fact, shown in the stipulated record, that points up the           
          arbitrary treatment of the transactions between Holly and AGS,              
          insofar as the choice of tax consequences was concerned, is that,           
          in the case of offsetting transactions, Holly and AGS agreed to             
          recognize both gains and losses as of the trade date of the                 
          offset.  This would seem to be contradicted by the fact that both           
          contracts remain in existence, and a net profit or loss is locked           
          in, but remains unrealized until the settlement date when the               
          securities are deemed delivered and received pursuant to both               
          contracts, and the net profit or loss debited or credited to the            
          trader's account.  I don't understand how agreement of the                  
          parties could change the tax consequences.  If such an agreement            
          were efficacious, the validity of short sales against the box in            
          not only locking in gain but also postponing realization would              
          seem to be thrown into doubt.                                               




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