49 constructed a straddle in X commodity, entering into a long May forward contract and a short September forward contract. Assume further that there is an unrealized loss in the short contract, and, for legitimate business reasons, the taxpayer wishes to switch the short contract to a December forward contract. The taxpayer cancels the short September contract, makes a cash settlement payment, and enters into a short December contract. The reality that the majority would impose is that the taxpayer entered into a long September contract under which, hypothetically, he took delivery of the commodity, which was used to satisfy the short September contract. To me, that is not reality; it is a fiction built upon a fiction. As a matter of tax policy, perhaps the cancellation of a forward contract should be treated as a zero dollar sale so as to satisfy the sale or exchange requirement of section 1222. Congress thinks so and has added section 1234A, which, however, is not effective with respect to the facts of this case. The majority’s understanding of the “nature of the termination of offsetting forward contracts”, majority op. p. 20, is illustrated by certain forward contracts in this case. That perspective is set forth as follows: “Upon closing by offset of forward contracts, the transaction is terminated and extinguished, settlement between the parties occurs at that time, and no contracts remain in effect.” Id. If that is intended as a general statement of fact or of legal consequence, it isPage: 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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