- 28 -
and the interest limitations of section 163(d) do not apply.
E.g., King v. Commissioner, supra at 457-463; Boatner v.
Commissioner, supra.
Investors likewise buy and sell for their own account, but
they are not considered to be in the trade or business of selling
securities. E.g., Groetzinger v. Commissioner, supra at 274-275;
Moller v. United States, supra at 813; King v. Commissioner,
supra at 458-459; Chen v. Commissioner, supra; Boatner v.
Commissioner, supra; Mayer v. Commissioner, T.C. Memo. 1994-209.
Expenses are deductible only under section 212 as itemized
deductions, and deduction of interest is restricted by section
163(d). E.g., King v. Commissioner, supra at 460-461; Boatner v.
Commissioner, supra; Mayer v. Commissioner, supra. Their
transactions, too, are capital in nature. E.g., King v.
Commissioner, supra at 457-459; Chen v. Commissioner, supra;
Boatner v. Commissioner, supra.
Nonetheless, a distinction, relevant here, exists between a
trader and an investor with respect to capital treatment. Only a
trader, and not an investor, is entitled to make a mark-to-market
election pursuant to section 475(f), with the consequence that
gains and losses are treated as ordinary in character under
section 475(d)(3)(A)(i) and (f)(1)(D). E.g., Vines v.
Commissioner, 126 T.C. 279, 287-288 (2006); Knish v.
Commissioner, T.C. Memo. 2006-268; Lehrer v. Commissioner, T.C.
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