- 67 - any event, we find that their motives were not primarily for profit. The laws that permit the deduction of valid straddle losses do so only "if such loss is incurred in a trade or business, or if such loss is incurred in a transaction entered into for profit though not connected with a trade or business". DEFRA sec. 108; see Code sec. 165. For a taxpayer to be in a "trade or business", the taxpayer's activity must have a "primarily for profit" motive. Polakof v. Commissioner, 820 F.2d 321 (9th Cir. 1987), affg. per curiam T.C. Memo. 1985-197; Zell v. Commissioner, 763 F.2d 1139 (10th Cir. 1985), affg. T.C. Memo. 1984-152. Thus, whether a taxpayer is in a trade or business or not, he or she must have incurred tax straddle losses in an activity engaged in primarily for profit. Our time focus on a taxpayer's profit motive is at the time the taxpayer initiated his transactions. Nevertheless, all the circumstances surrounding the taxpayer's transactions, including the disposition of the options, are material to the question of the taxpayer's intent. See Fox v. Commissioner, 82 T.C. at 1022. We accord greater weight to objective facts than to a taxpayer's self- serving statements characterizing his or her intent. See id. In this regard, "It is a fundamental legal maxim that the consequences of one's acts are presumed to be intended." Id. Here, the Merit investors who defend their investments were knowledgeable; many were insiders in the Merit markets. All were aware that spread transactions offered impressive tax savings while minimizing the risk associated with those savings. All were aware of the tax-advantaged nature of the assets being sold, such as T-Page: Previous 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 Next
Last modified: May 25, 2011