Marc Kirch - Page 4




                                        - 4 -                                         
               By Notice of Determination Concerning Collection Action(s)             
          Under Section 6320 and/or 6330, Appeals determined that the                 
          proposed collection action (levy) for 1999 should proceed.  An              
          attachment to the notice explains that (1) petitioner’s claim for           
          a loss carryback was not timely and (2) since he had raised no              
          collection alternative, collection by levy was correct.                     
                                       OPINION                                        
               Petitioner challenges his underlying liability for 1999, and           
          respondent agrees that petitioner’s liability is appropriately              
          before the Court.  See sec. 6330(c)(2)(B).                                  
               Petitioner was a trader in securities during 1999 and 2000.            
          The parties have stipulated that he had no customers for his                
          trading activity in 1999, and he has failed to show (and does not           
          claim) that he had any customers for that activity in 2000.  Due            
          to the fact that he did not have customers, he was not a dealer,            
          and he must treat the securities that he bought and sold as                 
          capital assets.2  His net capital loss for 2000 could, therefore,           

               2  As we recently described the situation in Chen v.                   
          Commissioner, T.C. Memo. 2004-132:                                          
                    In general, for Federal tax purposes, a person who                
               purchases and sells securities falls into one of three                 
               distinct categories: dealer, trader, or investor.  See                 
               King v. Commissioner, 89 T.C. 445, 458-459 (1987).                     
               Both traders and dealers are engaged in the trade or                   
               business of buying and selling securities.  Only the                   
               dealer’s business, however, involves sales to customers                
               in the ordinary course of that business.  Consequently,                
               only the dealer’s securities fall within the exception                 
               to capital asset status that is provided for “property                 
               held by the taxpayer primarily for sale to customers in                
               the ordinary course of his trade or business”.  Sec.                   
               1221(a)(1).  Thus, “traders * * * occupy an unusual                    
                                                             (continued...)           





Page:  Previous  1  2  3  4  5  6  7  Next 

Last modified: November 10, 2007