- 68 - 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.Page: Previous 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 Next
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