- 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
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