- 68 - 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 CourtPage: Previous 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 Next
Last modified: May 25, 2011