38 HALPERN, J., dissenting: I. Introduction I dissent because I believe that the majority is not justified in disregarding the actual transactions engaged in by Holly (the partnership) in favor of hypothetical transactions that yield the largest tax for the Government. The majority justifies treating a cancellation as a sale on the ground that cancellations and offsets are economically equivalent. Even were I to accept that proposition, the majority has failed to persuade me that a common “reality” of the two transactions is a sale. In searching for that reality, it is important to keep in mind that respondent has made the following concession: Respondent concedes for purposes of these cases that Holly Trading Associates’ transactions in forward contracts with ACLI Government Securities, Inc. during the years at issue were bona fide, had economic substance, and were entered into for profit. [Emphasis added.] I cannot join in an opinion that taxes a cancellation as a sale without specific statutory authority and under what I consider a drastic extension of the doctrine of substance over form. II. Anticipatory Commodities Transactions I believe that, in part, the majority misunderstands some of the complex arrangements by which persons arrange for the future purchase or sale of a commodity. A certain amount of detail is necessary to appreciate what I believe the majority misunderstands. Many of the factual details of the variousPage: Previous 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 Next
Last modified: May 25, 2011