-13-
Sec. 301.9100-3(b)(3)(iii), Proced. & Admin. Regs. The
Commissioner ordinarily will deny relief if specific facts have
changed since the due date for making the election that make the
election advantageous to a taxpayer. Id. A taxpayer attempting
to make a mark-to-market election years after it is due (while
continuing to trade in the meantime) in an attempt to convert
capital losses to ordinary losses is a classic example of a
taxpayer seeking to use hindsight. Vines v. Commissioner, supra
at 293-294 (describing the facts of Lehrer v. Commissioner,
supra, as a classic example of taxpayers seeking benefit of
hindsight); Acar v. United States, 98 AFTR 2d 2006-6296, 2006-2
USTC par. 50,529 (N.D. Cal. 2006). This is precisely what
petitioners and SPK are attempting to do.
Petitioners and SPK attempted to make mark-to-market
elections nearly 18 months late to convert capital losses into
ordinary losses. Unlike the taxpayer in Vines (who filed the
election only months late and discontinued trading during the
brief interlude), petitioners and SPK continued their trading
activities in the meantime. See Vines v. Commissioner, supra;
Lehrer v. Commissioner, supra. The facts here present yet
another example where a taxpayer seeks to use hindsight to make
the mark-to-market election when it is most advantageous. See
Vines v. Commissioner, supra; Lehrer v. Commissioner, supra.
Accordingly, petitioners and SPK are deemed not to have acted
reasonably and in good faith and are not qualified for section
9100 relief.
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