Leema Enterprises, Inc. - Page 66




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          existence, of the underlying commodities.  Merit was "playing a             
          football game without the football".  See Price v. Commissioner, 88         
          T.C. 860, 884 (1987).                                                       
               Petitioners' counsel have ably compartmentalized the elements          
          of respondent's criticisms of the Merit program and then gone to            
          work on each singly.  But in the end, we must bring all these               
          elements together.  Treating the facts as a bundle, we cannot escape        
          the conclusion that the Merit markets lacked economic substance.            
          Although the form appeared as markets for particular financial              
          instruments, the substance was the creation of straddles to generate        
          loss deductions without corresponding economic losses.  From an             
          objective standpoint, the straddles were unlikely to produce                
          economic benefits aside from tax deductions.  In short, the Merit           
          trades lacked economic substance and cannot support the losses              
          claimed.  See Casebeer v. Commissioner, 909 F.2d 1360 (9th Cir.             
          1990).25                                                                    
          Issue 2.  Primary Profit Objective                                          
               Our holding as to economic substance may obviate the need to           
          discuss at length the question of petitioners' profit motives; in           

               25   Petitioners contend that, to the extent their                     
          deductions are disallowed under the Merit programs because of a             
          lack of economic substance, the corresponding income should be              
          removed from taxable income as well.  We agree.  In a sham                  
          situation, we must give effect neither to the deductions nor to             
          the income generated by the program at issue.  Sheldon v.                   
          Commissioner, 94 T.C. 738, 762 (1990); see Julien v.                        
          Commissioner, 82 T.C. 492, 498, 508-509 (1984); see also                    
          Goldstein v. Commissioner, 364 F.2d 734 (2d Cir. 1966), affg. 44            
          T.C. 284 (1965); cf. DEFRA sec. 108(c), 98 Stat. 630, as amended            
          by the Tax Reform Act of 1986 (TRA), Pub. L. 99-514, sec.                   
          1808(d), 100 Stat. 2817.                                                    

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