Leema Enterprises, Inc. - Page 67




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          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-           

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