46 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.]Page: Previous 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 Next
Last modified: May 25, 2011