- 14 - 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-upPage: Previous 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Next
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