Saba Partnership, Brunswick Corporation, Tax Matters Partnership - Page 133




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         respect its form for tax purposes where the record shows that the            
         transaction was in fact a contrivance designed to obtain a tax               
         benefit not intended by Congress under the taxing statute.                   
              The Court of Appeals for the District of Columbia Circuit               
         has considered the scope and application of the economic                     
         substance doctrine.  In Horn v. Commissioner, supra, the                     
         Commissioner disallowed losses claimed by commodities dealers                
         with respect to so-called option-straddle transactions on the                
         ground that the transactions were economic shams.  This Court                
         granted the Commissioner's motion for summary judgment,                      
         sustaining the Commissioner's determination that the transactions            
         were devoid of economic substance.  See Fox v. Commissioner,                 
         supra.                                                                       
              On appeal, the Court of Appeals for the District of Columbia            
         Circuit reversed after concluding that Congress had intended to              
         allow the disputed losses pursuant to section 108 of the Tax                 
         Reform Act of 1984 (Division A of the Deficit Reduction Act of               
         1984, Pub. L. 98-369, 98 Stat. 494, 630), as amended under the               
         Tax Reform Act of 1986 (TRA 1986), Pub. L. 99-514, sec. 1808(d),             
         100 Stat. 2817.  For the text of section 108, and the 1986                   
         amendment, see Glass v. Commissioner, 87 T.C. 1087, 1164-1166                
         (1986).  After reviewing Supreme Court precedent and scholarly               
         articles on the subject, the Court of Appeals described the sham             
         transaction doctrine as follows:                                             






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