Bank One Corporation - Page 136

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          (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.            




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