Estate of Leon Israel, Jr., Deceased, Barry W. Gray, Executor, and Audrey H. Israel - Page 49

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          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 is                  




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