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With regard to making the mark-to-market election, section
475(f)(3) provides:
(3) Election.--The elections under paragraphs (1)
and (2) may be made separately for each trade or
business and without the consent of the Secretary.
Such an election, once made, shall apply to the taxable
year for which made and all subsequent taxable years
unless revoked with the consent of the Secretary.
The statute and regulations do not provide procedures that
specify the time and manner to make a mark-to-market election.3
We look to the legislative history of section 475 to
determine congressional intent because the statute is silent as
to the procedures which must be followed to make a mark-to-market
election. Ewing v. Commissioner, 118 T.C. 494, 503 (2002)
(citing Burlington N.R.R. Co. v. Okla. Tax Commn., 481 U.S. 454,
461 (1987)); see Wells Fargo & Co. v. Commissioner, 120 T.C. 69,
89 (2003); Allen v. Commissioner, 118 T.C. 1, 7 (2002). The
legislative history states that “The election will be made in the
time and manner prescribed by the Secretary of the Treasury and
will be effective for the taxable year for which it is made and
all subsequent taxable years, unless revoked with the consent of
the Secretary.” See H. Conf. Rept. 105-148, at 446 (1997), 1997-
4 C.B. (Vol. 1) 323, 768. Thus, the Secretary has authority to
prescribe the time and manner of the election.
3 The Commissioner issued proposed regulations on Jan. 28,
1999. Sec. 1.475(f)-1, Proposed Income Tax Regs., 64 Fed. Reg.
4378 (Jan. 28, 1999).
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