-214- (rather than a hypothetical) financial instrument.70 In determining our manner of valuation, we consider it important that we are unable to find (nor does either party or the amici suggest) that, except in rare cases, a party to a swap actually sells its place in the swap to a third party. The record indicates, and we find as a fact, that, except in those rare cases, one party to a swap never sells only its position in the swap but, instead, if it wants to get out of the swap, terminates the swap in full primarily through a buyout. VIII. Applicable Valuation Date FNBC did not determine the value of its swaps as of the last business day of its taxable years. Petitioner argues that the early closing dates were reasonable and did not result in any undervaluation of its swaps. Petitioner asserts that early closing dates were common among banks and resulted, at most, in a timing difference of 1 year. Petitioner relies upon Wal-Mart Stores Inc. v. Commissioner, T.C. Memo. 1997-1, as support for the early valuation dates used by FNBC. We are unpersuaded by petitioner’s argument. Section 475 required that FNBC value its swaps as of the last business day of its 1993 taxable year. Although section 475 by its terms also 70 In other words, were we to value FNBC’s swaps by assuming that a hypothetical buyer replaces FNBC in the swap, we are no longer valuing the actual swap but are now valuing a hypothetical swap between the hypothetical buyer and the actual counterparty.Page: Previous 204 205 206 207 208 209 210 211 212 213 214 215 216 217 218 219 220 221 222 223 Next
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