Estate of Leon Israel, Jr., Deceased, Barry W. Gray, Executor, and Audrey H. Israel - Page 48

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          Circuit erred in not recognizing “the fundamental sale or                   
          exchange nature” of cancellations of forward contracts.  Majority           
          op. p. 22.                                                                  
           The majority’s perception of fundamental reality is bottomed on            
          the treatment accorded RFCs settled by offset, as articulated in            
          Covington v. Commissioner, supra.  There, the taxpayer argued               
          that the reality of an exchange regulated offset is the lack of             
          any actual sale or exchange because there is an extinguishment of           
          the RFC settled by offset.  The Court of Appeals for the Fifth              
          Circuit, however, forced the taxpayer to abide by the form of the           
          transaction he had chosen (as sculpted by the exchange rules                
          dealing with offsets) and held that, in effect, he had entered              
          into two contracts and realized a gain on closing the short                 
          contract.  That is a perfectly appropriate result.  See, e.g.,              
          Legg v. Commissioner, 57 T.C. 164, 169 (1971), affd. 496 F.2d               
          1179 (9th Cir. 1974), in which we stated:  “A taxpayer cannot               
          elect a specific course of action and then when finding himself             
          in an adverse situation extricate himself by applying the age-old           
          theory of substance over form.”                                             
           The fiction imposed on a taxpayer that settles RFCs by offset,             
          however, is not a ground to conclude that, in reality, a taxpayer           
          not engaging in an exchange regulated offset (indeed, not                   
          engaging in an offset at all) entered into a hypothetical                   
          contract to complete the purchase and sale of a commodity that he           
          never owned.  Assume, for instance, that the taxpayer has                   




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