Richard Gorkes, Jr. and Susan Gorkes - Page 12

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          prerequisite to the existence of net gain is that the taxpayer’s            
          gains exceed the taxpayer’s losses.                                         
               Black’s Law Dictionary (7th ed. 1999) defines the term “net            
          loss” as “The excess of all expenses and losses over all revenues           
          and gains.”  By analogy, the natural, ordinary, and familiar                
          meaning of the term “net gain” is the excess of all gains over              
          all losses.10                                                               
               As is relevant herein, the terms “gains” and “losses”                  
          include short-term and long-term capital gains and short-term and           
          long-term capital losses, respectively.  For purposes of                    
          determining “net short-term capital gain”, the prior year’s                 
          short-term capital loss that is carried forward to the current              
          taxable year under section 1212(b)(1)(A) is treated as a short-             
          term capital loss for such taxable year.11  Sec. 1.1222-1(b)(1),            
          Income Tax Regs.  Likewise, for purposes of determining “net                


               10  See, e.g., similar definitions under sec. 1222(9) that             
          define “capital gain net income” as “the excess of the gains from           
          the sales or exchanges of capital assets over the losses from               
          such sales or exchanges”, and under sec. 1.469-                             
          2T(e)(3)(ii)(E)(3), Temporary Income Tax Regs., 53 Fed. Reg. 5719           
          (Feb. 25, 1988), that define “net gain” for purposes of that                
          section as “the amount by which the gains from the sale of all of           
          the property * * * exceed the losses (if any) from such sale”.              
               11  Sec. 1212(b)(1) provides in pertinent part: “If a                  
          taxpayer other than a corporation has a net capital loss for any            
          taxable year--(A) the excess of the net short-term capital loss             
          over the net long-term capital gain for such year shall be a                
          short-term capital loss in the succeeding taxable year, and (B)             
          the excess of the net long-term capital loss over the net short-            
          term capital gain for such year shall be a long-term capital loss           
          in the succeeding taxable year.”                                            




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