Farmland Industries, Inc. - Page 94




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             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 is               






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Last modified: May 25, 2011