Stephen and Jane Marrin - Page 14

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          Second Circuit.  As the latter observed in Seeley v. Helvering,             
          77 F.2d 323, 324 (2d Cir. 1935):                                            
               So far as * * * [the taxpayer] traded in securities on his             
               own account, his sales were on the exchange to persons whom            
               he did not even know; these were not his customers, but                
               customers of the brokers who bought of him. * * *                      
          Faced more recently with the same argument, this Court stated:              
               [The taxpayer] would have us look through Merrill Lynch                
               and Prudential-Bache [the taxpayer's brokers] to the                   
               nameless members of the commodity markets who                          
               ultimately purchased the commodity contracts * * * [the                
               taxpayer] sold and sold the commodity contracts * * *                  
               [the taxpayer] purchased.  Even were we to so look                     
               through Merrill Lynch and Prudential-Bache, * * * [the                 
               taxpayer] would fare no better, as members of an                       
               organized exchange who buy and sell securities from a                  
               taxpayer are not the taxpayer's "customers" within the                 
               meaning of section 1221(1). * * *  [Swartz v.                          
               Commissioner, supra.]                                                  
          Accordingly, neither petitioner's broker-dealers nor their                  
          customers constitute petitioner's customers for purposes of                 
          section 1221(1).                                                            
               In Kemon v. Commissioner, 16 T.C. 1026, 1032-1033 (1951),              
          this Court provided a delineation of the customer requirement and           
          its bearing on the dealer/trader distinction for holders of                 
          securities as follows:                                                      
                    In determining whether a seller of securities                     
               sells to "customers," the merchant analogy has been                    
               employed.  Those who sell "to customers" are comparable                
               to a merchant in that they purchase their stock in                     
               trade, in this case securities, with the expectation of                
               reselling at a profit, not because of a rise in value                  
               during the interval of time between purchase and                       
               resale, but merely because they have or hope to find a                 
               market of buyers who will purchase from them at a price                
               in excess of their cost.  This excess or mark-up                       




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