Pine Creek Farms, Ltd. - Page 5




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               Section 165(a) generally allows a deduction for any loss               
          sustained during the taxable year and not compensated for by                
          insurance or otherwise.  Section 165(f) states that losses from             
          sales or exchanges of capital assets shall be allowed only to the           
          extent allowed in section 1211 and 1212, which set forth                    
          limitations on capital losses.  A "capital asset" is defined as             
          "property held by the taxpayer", but there are several exceptions           
          to the general rule.  Sec. 1221.  During the year in issue, none            
          of the exceptions addressed futures contracts.  Sec. 1221.                  
          (Section 1221 was amended by adding subsection 7 which excludes             
          clearly identified hedging transactions from the definition of              
          capital asset, effective for any transaction entered into on or             
          after December 17, 1999.  Ticket to Work and Work Incentives                
          Improvement Act of 1999, Pub. L. 106-170, sec. 532(a)(3), 113               
          Stat. 1928).  Because commodity futures contracts were not                  
          specifically excluded, they generally are treated as capital                
          assets.  See generally Arkansas Best Corp. v. Commissioner, 485             
          U.S. 212 (1988); Myers v. Commissioner, T.C. Memo. 1986-518.                
               Section 1233(a) specifically provides that gain or loss from           
          short sales of commodity futures shall be treated as gain or loss           
          from the sale of a capital asset.  However, section 1233(g)                 
          states that section 1233(a) shall not apply in the case of a                
          hedging transaction in commodity futures.                                   







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