Saba Partnership, Brunswick Corporation, Tax Matters Partnership - Page 11




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              first, the sham transaction doctrine is simply an aid                   
              to identifying tax-motivated transactions that Congress                 
              did not intend to include within the scope of a given                   
              benefit-granting statute; and second, a transaction                     
              will not be considered a sham if it is undertaken for                   
              profit or for other legitimate nontax business                          
              purposes. * * * As the Seventh Circuit pointed out in                   
              Yosha,[861 F.2d at 498,] “the taxpayer [in Gregory] was                 
              trying to take advantage of a loophole inadvertently                    
              created by the framers of the tax code; in closing such                 
              loopholes the courts could not rightly be accused of                    
              having disregarded congressional intent or                              
              overreached.” * * *  [Horn v. Commissioner, 968 F.2d at                 
              1238.]                                                                  
              Relying on section 108(a) and (b) as amended under TRA 1986,            
         the Court of Appeals stated that "Congress undoubtedly has the               
         power to grant beneficial tax treatment to economically                      
         meaningless behavior, if indeed that is what happened here."                 
         Horn v. Commissioner, 968 F.2d at 1234.  Pointing to the plain               
         language of section 108, the Court of Appeals held that Congress             
         had authorized deductions for losses associated with option-                 
         straddle transactions so long as the taxpayer qualified as a                 
         commodities dealer.  See Horn v. Commissioner, supra at 1239.                
         The Court of Appeals stated that "section 108(b) does all that it            
         need do for the taxpayers to prevail here--it creates an                     
         irrebuttable presumption that a commodities dealer has made his              
         straddle trades in a trade or business, i.e., he has not engaged             
         in an economic sham."  Id. at 1239.  The Court of Appeals further            
         noted that section 108(a) closely tracked the sham transaction               
         doctrine insofar as a loss was allowed only if the transaction               
         was entered into for profit or in a trade or business.  See id.              





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