- 31 - immediate delivery purchase contract and avoided any commitment fee. The prior approval purchase contracts provided an originator with protection in the event it could not deliver a mortgage to petitioner. Thus, despite the fact that originators delivered mortgages to petitioner in approximately 99 percent of the prior approval purchase contracts, originators were apparently willing to pay a premium for the option because they were uncertain about when or whether they would in fact have a mortgage to sell to petitioner. 3. Rationale for Option Treatment The policy rationale for the tax treatment of an option as an open transaction is that the outcome of the transaction is uncertain at the time the payments are made. That uncertainty prevents the proper characterization of the premium at the time it is paid. See Dill Co. v. Commissioner, 33 T.C. 196, 200 (1959), affd. 294 F.2d 291 (3d Cir. 1961). “Since the optionor assumes such obligation, which may be burdensome and is continuing until the option is terminated, without exercise, or otherwise, there is no closed transaction nor ascertainable income or gain realized by an optionor upon mere receipt of a premium for granting such an option.” Rev. Rul. 58-234, 1958-1 C.B. at 283. Respondent argues that open transaction treatment is inappropriate because petitioner had a fixed right to the nonrefundable portion of the commitment fee at the time the priorPage: Previous 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 Next
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