Lee B. Arberg and Melissa A. Quinn - Page 28




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          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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