48 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 hasPage: Previous 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 Next
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