Bank One Corporation - Page 99

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          was acceptable for FNBC also to have used its mark-to-market                
          method for purposes of section 475 as long as the method actually           
          arrived at the fair market value of FNBC’s swaps.  Stated                   
          differently, we believe that FNBC’s mark-to-market method will              
          clearly reflect its swaps income for Federal income tax purposes            
          if the method was in fact a mark-to-market method.                          
                    1.  Acceptable in Theory                                          
               Mark-to-market accounting has for decades been considered by           
          academia and other commentators to be the most theoretically                
          desirable of all the various systems of taxing income in that               
          mark-to-market accounting consistently measures and levies tax on           
          a taxpayer’s economic (or Haig-Simons) income.60  See Haig, The             
          Concept of Income--Economic and Legal Aspects, The Federal Income           
          Tax (1921), in Readings in the Economics of Taxation 68-69                  


          59(...continued)                                                            
          believe that there may be more than one specific method of                  
          accounting that may properly be considered a mark-to-market                 
          method under sec. 475(a)(2).                                                
          60 As the Court noted in Collins v. Commissioner, T.C. Memo.                
          1992-478, affd. 3 F.3d 625 (2d Cir. 1993):                                  
               The Haig-Simons definition of income states that income                
               during a taxable period is properly defined as the sum                 
               of (1) the market value of rights exercised in                         
               consumption during the period, and (2) the increase in                 
               the value of the store of property rights, or wealth,                  
               between the beginning and the end of the period.  Haig,                
               The Concept of Income--Economic and Legal Aspects, in                  
               Readings in the Economics of Taxation 54 (Musgrave &                   
               Shoup eds. 1959); Simons, Personal Income Taxation 50                  
               (1938).  * * *                                                         




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