Estate of Leon Israel, Jr., Deceased, Barry W. Gray, Executor, and Audrey H. Israel - Page 46

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          contract of the offsetting pair on the settlement date or on any            
          earlier date that the parties consummate a cash settlement.  That           
          suggestion as to timing, however, is thrown into doubt by the               
          majority.  There seems to be no disagreement, however, that the             
          gain or loss is realized from a sale or exchange.  The second               
          step in the switch would be exactly the same as if the switch               
          were initiated by canceling the to-be-switched-leg, i.e.,                   
          entering into a replacement contract.                                       
           E.  Canceling Both Legs                                                    
           The majority has not made clear that what it has called the                
          Third Contract, see majority op. p. 5 (the November 25th group),            
          involved straddles consisting of contracts that were all closed             
          by cancellation on the same date.  There was no switch of any leg           
          and, consequently, no continuing straddle investment after the              
          cancellations, all of which took place on November 25, 1980.                
          III.  Majority’s Theory of Equivalence                                      
           I believe that the key to understanding the majority’s error is            
          contained in the following sentence:                                        
           Whenever the investor (during the length or duration of the                
           forward contracts that have been purchased) elects to settle,              
           close out, extinguish, or cancel the contracts or positions,               
           or one of the legs thereof, and to realize the gain or loss                
           associated with the contracts, or with one of the legs                     
           thereof, and regardless of whether the investor “closes out”               
           or “locks in” the gain or loss by way of offset, by way of                 
           cancellation and replacement contracts, or by way of                       
           cancellation and termination, the transaction is exactly the               
           same -- in purpose, in effect, and in substance -- and                     
           produces exactly the same type of taxable gain or loss -- in               
           the instant cases capital gain or capital loss.  [Majority op.             
           pp. 18-19; emphasis added.]                                                




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