Gary K. Bielfeldt and Carlotta J. Bielfeldt - Page 26

                                       - 26 -                                         

                    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 represents remuneration for                
                    their labors as a middleman bringing together buyer and           
                    seller, and performing the usual services of retailer             
                    or wholesaler of goods.                                           

               Kemon v. Commissioner, 16 T.C. 1026, 1032-33 (1951).                   
               Dealers have customers for purposes of section 1221.                   
               See United States v. Diamond, 788 F.2d 1025, 1029 (4th                 
               Cir. 1986).                                                            

                    Traders, on the other hand, are sellers of                        
               securities or commodities who "depend upon such                        
               circumstances as a rise in value or an advantageous                    
               purchase to enable them to sell at a price in excess of                
               cost."  Id. at 1033.  A trader performs no                             
               merchandising functions nor any other service which                    
               warrants compensation by a price mark-up of the                        
               securities he or she sells.  Id. at 1032-33.  "[A]                     
               trader will be deemed to be engaged in a trade or                      
               business if his or her trading is frequent and                         
               substantial.  King, 89 T.C. at 458.  Generally, both                   
               dealers and traders will be engaged in a trade or                      
               business; only a dealer, however, has customers.                       

                    An investor is very similar to a trader.  Like a                  
               trader, an investor "makes purchases for capital                       
               appreciation and income."  King, 89 T.C. at 459.                       
               Unlike a trader, however, an investor makes such                       
               purchases "usually without regard to short-term                        
               developments that would influence prices on the daily                  
               market."  Id.  An investor, on the other hand, will                    
               never be considered to be engaged in a trade or                        
               business with respect to his or her investment                         
               activities, no matter how extensive his or her                         
               activities might be.  Id. at 459.  [Id.]                               

          See also sec. 1.471-5, Income Tax Regs. (regulatory definition of           
          a dealer in securities).                                                    

               Petitioner was not a dealer.  First, he did not conduct his            
          trading activity in the manner in which a dealer would have.  He            
          personally owned all of the Treasury securities that he traded,             



Page:  Previous  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  Next

Last modified: May 25, 2011