Farmland Industries, Inc. - Page 73




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             gain or loss should be treated as patronage income.                      
             Petitioner asks the Court to reject the per se rule                      
             espoused by respondent under which capital gains and losses              
             are always classified as nonpatronage.  In the event that                
             the Court adopts a per se rule for capital gains and                     
             losses, petitioner argues that the gains and losses from                 
             its disposition of the stock of Terra, Seaway, and Mex-Am                
             are not subject to such rule because they are ordinary                   
             gains and losses “under the long-standing case law                       
             principles relating to ‘source of supply’, noncapital asset              
             ‘surrogacy’ and ‘hedging’.”  Similarly, petitioner argues                
             that the gains from the disposition of the section 1231                  
             assets, are “‘noncapital’ assets by statutory definition                 
             (under section 1221(2))” and are not subject to                          
             respondent's per se rule.  Finally, petitioner argues that               
             even if the gains from the sale of Terra stock and the                   
             section 1231 assets are classified as nonpatronage income,               
             such income can nevertheless be offset by petitioner's                   
             patronage losses which were true operating losses.                       
                  Respondent argues that all of the gains and losses                  
             at issue in this case are capital in nature and must be                  
             automatically classified as nonpatronage under the per se                
             rule prescribed by section 1.1382-3(c)(2), Income Tax Regs.              
             Alternatively, respondent argues that even if the Court                  






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Last modified: May 25, 2011