- 89 - treated as “long-term capital gains or long-term capital losses” under section 1231(a)(1) (by reason of the fact that the aggregate section 1231 gains exceed the aggregate section 1231 losses for the taxable year), then each section 1231 gain and loss realized during the year is automatically deemed to be a nonpatronage item under the per se rule. On the other hand, if the section 1231 gains and losses for the taxable year are not “treated as gains and losses from sales or exchanges of capital assets” under section 1231(a)(2) (by reason of the fact that the aggregate section 1231 gains do not exceed the aggregate section 1231 losses for the taxable year), then each section 1231 gain and loss realized during the year is deemed to be a patronage item under the per se rule. Under respondent’s position, therefore, the patronage classification of gains and losses from the sale or exchange of property used in the trade or business is determined by the mathematical result of the netting process under section 1231. It has nothing to do with whether the property or the transactions from which the gains or losses arose are related to the operations of the cooperative. This is contrary to section 1.1382-3(c)(2), Income Tax Regs., which formulates the distinction between patronage and nonpatronage in terms of whether the item isPage: Previous 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 Next
Last modified: May 25, 2011