Leema Enterprises, Inc. - Page 48




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          1986 (TRA), Pub. L. 99-514, sec. 1808(d), 100 Stat. 2085, 2817.             
          Both require a “loss”.  If a transaction lacks economic substance,          
          it cannot provide a basis for a deductible “loss”.  Lerman v.               
          Commissioner, supra at 45.                                                  
               Like other tax straddles, Merit trades appear to indicate that         
          its investors had actually incurred substantial yearend losses.  In         
          reality, there were no such losses; the investors, who purchased            
          only straddles, were substantially protected against the economic           
          effect of actual losses by holding onto unrealized gains--gains that        
          would be taxed only in the next year, or even later.  Merit employed        
          combination spreads--that is, two spreads, each of whose movements          
          in response to a market shift would counteract the other.                   
          Combination spreads thus afforded even more protection against              
          actual economic effects--whether losses or gains.  Such tactics take        
          unintended "advantage of the practical necessity of preserving the          
          integrity of separate taxable years.  Congress never intended such          
          stratagems to prosper.”  Fox v. Commissioner, supra at 1027.                
               As petitioners point out, we have permitted the deduction of           
          straddle losses incurred by profit-motivated individuals who trade          
          consistently on established markets and hedge their positions.  See,        
          e.g., Laureys v. Commissioner, 92 T.C. 101 (1989).  In those cases,         
          however, we have been convinced that the taxpayers had primarily            
          for-profit objectives and that the markets on which they invested           
          possessed a potential for delivering meaningful profits.                    
          Petitioners have failed to make that showing.                               



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