Leema Enterprises, Inc. - Page 68




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          bills that would yield ordinary losses and stock forwards which             
          promised ordinary losses with "cancellations".  We believe that such        
          investors would not invest in new and untried ventures in marketing         
          options in Treasury obligations or stock forwards unless they would         
          benefit from prompt and sizable tax deductions.  Their arguments            
          about economic possibilities are self-serving and unconvincing.  The        
          tax returns reflect that they accomplished what they set out to do--        
          obtain first-year deductions from their spread positions and                
          postpone gains.  Other objective facts, including the tax-flavored          
          aspect of the instruments involved, their almost immediate                  
          disposition for tax losses, and the investors' substantial                  
          indifference to profits all combine to show that petitioners'               
          primary objective was obtaining tax benefits.  We, therefore,               
          conclude that because petitioners lacked a "primarily for profit"           
          motive, they failed to meet the statutory requirements for deducting        
          the losses at issue.26                                                      


               26   We note that none of the individual petitioners have              
          claimed coverage of the per se rule applicable to commodities               
          dealers; that is, that any loss incurred "shall be treated as a             
          loss incurred in a trade or business".  TRA sec. 1808(d).                   
               Citing cases such as International Trading Co. v.                      
          Commissioner, 484 F.2d 707 (7th Cir. 1973), revg. and remanding             
          57 T.C. 455 (1971), petitioner Leema argues that, as a                      
          corporation, it need not demonstrate that it was in a trade or              
          business or otherwise engaged in an activity primarily for                  
          profit.  Our conclusion that the Merit trades lacked economic               
          substance vitiates any claim that petitioners might make under              
          either the per se rule or International Trading Co.  "[E]conomic            
          substance is a prerequisite to the application of any Code                  
          provisions allowing deductions".  Lerman v. Commissioner, 939               
          F.2d 44, 52 (3d Cir. 1991), affg. Fox v. Commissioner, T.C. Memo.           
          1988-570.                                                                   

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