- 22 - he purchased pursuant thereto, for subsequent gain or loss purposes. * * * See also Rev. Rul. 78-182, 1978-1 C.B. 265. A contract is an option contract when it provides (A) the option to buy or sell, (B) certain property, (C) at a stipulated price, (D) on or before a specific future date or within a specified time period, (E) for consideration. W. Union Tel. Co. v. Brown, 253 U.S. 101, 110 (1920); Halle v. Commissioner, supra at 654; Old Harbor Native Corp. v. Commissioner, 104 T.C. at 201; Estate of Franklin v. Commissioner, supra at 762-763; Rev. Rul. 58-234, supra. To determine whether a contract constitutes an option, courts look at the contractual language and the economic substance of the agreement. Halle v. Commissioner, supra. Petitioner’s prior approval purchase contracts exhibit the following characteristics of an option for tax purposes: (1) The prior approval purchase contracts satisfy the formal requirements of option contracts; (2) the economic substance of the prior approval purchase contracts indicates that the contracts are an option; and (3) the rationale for granting open transaction treatment to option premium applies to petitioner’s transactions. 1. Formal Requirements of the Option Petitioner’s prior approval purchase contracts provide for the optional delivery of mortgages by an originator. The Sellers’ and Servicers’ Guide states: “Delivery under this program is optional. However, unless the optional deliveryPage: Previous 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 Next
Last modified: May 25, 2011