dissenting:
I. Introduction
I dissent because I believe that the majority is not justified in disregarding the actual transactions engaged in by Holly (the partnership) in favor of hypothetical transactions that yield the largest tax for the Government. The majority justifies treating a cancellation as a sale on the ground that cancellations and offsets are economically equivalent. Even were I to accept that proposition, the majority has failed to persuade me that a common “reality” of the two transactions is a sale. In searching for that reality, it is important to keep in mind that respondent has made the following concession:
Respondent concedes for purposes of these cases that Holly Trading Associates’ transactions in forward contracts with ACLI Government Securities, Inc. during the years at issue were bona fide, had economic substance, and were entered into for profit. [Emphasis added.]
I cannot join in an opinion that taxes a cancellation as a sale without specific statutory authority and under what I consider a drastic extension of the doctrine of substance over form.
II. Anticipatory Commodities Transactions
I believe that, in part, the majority misunderstands some of the complex arrangements by which persons arrange for the future purchase or sale of a commodity. A certain amount of detail is necessary to appreciate what I believe the majority misunderstands. Many of the factual details of the various anticipatory arrangements for the purchase or sale of a commodity can be found in our opinion in Stoller v. Commissioner, T.C. Memo. 1990-659, affd. in part and revd. in part 994 F.2d 855 (D.C. Cir. 1993).1 Following are pertinent terms and concepts.
A. Regulated Futures Contracts
A regulated futures contract (RFC) is a standardized execu-tory contract to buy or sell a designated commodity at a specific price on a fixed date in accordance with the rules of a commodity exchange. The date the contract is to be performed is normally identified by its delivery month, e.g., “a January 1997 contract”. All RFC’s start out as a contract between a buyer and seller. At the end of each trading day, the exchange’s clearing organization substitutes itself as the “other side” of each contract, so the clearing organization becomes the buyer to each seller and the seller to each buyer. The agreement made by or on behalf of the two parties on the floor of the exchange is thus broken down into a “long” RFC, in which one party is the buyer and the clearing organization is the seller, and a “short” RFC, in which the other party is the seller and the clearing organization is the buyer.
Trading in RFC’s for a specific commodity and delivery month continues until the day of the month set by the exchange on which trading in contracts for that delivery month stops. Thereafter, delivery of the commodity is made by holders of open short rfc’s to holders of open long RFC’s on the matched-up basis established by the clearing organization.
Up until the date trading stops, the holders of both long and short rfc’s can close out their contracts without making or taking delivery of the commodity by entering into inverse purchase or sale contracts on the exchange. Thus, the holder of a long RFC can eliminate the risk of, or “offset”, his obligation to purchase and pay for the commodity by acquiring from another the promise to purchase and pay for the same commodity on the same exchange for the same delivery month, that is, by entering into an inverse, short RFC. Such a transaction has been held to meet the Code requirement of a “sale or exchange”, which can give rise to capital gain or loss, on the ground that a “fictional” delivery is made on the offsetting inverse, short RFC with the commodity “acquired” under the long RFC. Commissioner v. Covington, 120 F.2d 768, 770, 772 (5th Cir. 1941), affg. in part and revg. in part 42 B.T.A. 601 (1940). The holder of a short RFC can, likewise, offset his obligation to sell the commodity at the agreed price by acquiring from another a commitment to sell and deliver the same commodity on the same exchange for the same delivery month, that is, by entering into an inverse, long RFC. The commodity to be delivered under the long RFC is deemed received and used to satisfy the delivery obligation under the short RFC, thus satisfying the sale or exchange requirement necessary for capital gain or loss treatment. Id. The special short sale rules of section 1233 are applicable to RFC’s. Unless certain exceptions apply, the gain or loss is capital. Sec. 1233(a).
It appears that, under the usual exchange rules applicable to rfc’s, the offsetting contracts, which are both with the exchange, immediately cancel and are terminated, with a money settlement for the difference in value. Commissioner v. Covington, supra at 769. Gain or loss is, thus, realized on that (the offset) date.
B. Forward Contracts
A forward contract is also an executory agreement calling for future delivery of a commodity. Forward contracts, however, are privately negotiated; they are not traded on commodity exchanges or subject to the rules of any board of trade. If the parties to any particular forward contract agree, the contract can be canceled before the delivery date. Normally, any unrealized gain or loss in the contract would then be accounted for because the party on the profitable end of the contract would demand payment for giving up a valuable right. The character of that gain or loss is the question in this case. A party may fix the amount of unrealized gain or loss in a forward contract by entering into an inverse contract to buy or sell the same commodity for delivery on the same date (the settlement date) but at the then-current market price for delivery on such date. In Hoover Co. v. Commissioner, 72 T.C. 206, 249-250 (1979), we described the consequence of entering into offsetting forward contracts.
Finally, we note that the most common method of settling a forward sale contract has traditionally been to enter into a purchase contract and to offset the contractual obligations to sell and purchase. Meade v. Commissioner, T.C. Memo. 1973-46; Muldrow v. Commissioner, 38 T.C. 907, 910 (1962); Sicanoff Vegetable Oil Corp. v. Commissioner, 27 T.C. 1056, 1059, 1063 (1957), revd. 251 F.2d 764 (7th Cir. 1958). Offset of the contractual obligations by the seller has been held to be delivery under the sale contract (Chicago Bd. of Trade v. Christie Grain & Stock Co., 198 U.S. 236, 248 (1905); Lyons Milling Co. v. Goffe & Carkener, Inc., 46 F.2d 241, 247 (10th Cir. 1931)), satisfying the sale or exchange requirement on the date the contract is settled. See Covington v. Commissioner, 42 B.T.A. 601 (1940), affd. in part 120 F.2d 768 (5th Cir. 1941), cert. denied 315 U.S. 822 (1942).
There is, thus, an important distinction between the operation of offset in the contexts of RFC’s and forward contracts. By exchange rules, offsetting RFC’s cancel and are terminated on the offset date, with a money settlement then for any difference in values. Offsetting forward contracts, being privately negotiated, do not automatically cancel and terminate on the offset date but, unless the parties agree to the contrary, coexist until the settlement date, when both contracts are deemed to have been executed, with delivery taken (on the long contract) and delivery made (on the short contract). Although not perfectly clear on that point, Hoover suggests that, unless the parties earlier agree to settle up, the settlement date, not the offset date, is the date that gains and losses are realized with respect to forward contracts settled by offset. In Hoover, there were 13 forward contracts in issue that were settled by entering into inverse forward contracts. Of that number, a debit or credit (settlement payment) was made after the offset date, on the settlement date, in nine situations. In one situation, a settlement payment was made after the offset date, but in advance of the settlement date, and, in one situation, a settlement payment was made after the settlement date. In two situations, a settlement payment was made on the offset date. In one situation, it is clear that the settlement payment was made in a year beginning after the offset date. Nothing indicates that the taxpayer did not report, and both the Commissioner and the Court accepted, the date of the settlement payment as the date that gain or loss was realized. Indeed, the Court calculated the holding period with respect to those transactions from the offset date; those calculations seem to belie any assertion that the offset date is the date of realization. Hoover Co. v. Commissioner, supra at 250-251.
C. Straddle
A person who has entered into either an RFC or a forward contract (when no distinction is intended, an “anticipatory contract”) assumes the risk that the market price for delivery of the commodity on the agreed date will change. Changes in the market price for delivery of the commodity will result in changes in the value of an anticipatory contract for delivery in that month. An anticipatory contract holder is described as being in a “naked” position when he bears the unalloyed risk of changes in the market price for delivery of the commodity (market risk).
A straddle, in its simplest terms, is the simultaneous entry into two anticipatory contracts with respect to the same commodity; one is a long contract, to buy a given amount of the commodity for delivery at a specific time, and the other is a short contract, to sell the same amount of the commodity for delivery at a different time. A straddle reduces market risk because, as the value of one leg decreases, the value of the other leg increases. Because the legs are for deliveries at different times, the value changes will not necessarily be exactly offsetting. There is, thus, the potential for profit or loss in a straddle.
D. Replacing a Leg
A participant in a straddle may replace one leg of the straddle with another contract of the same kind (i.e., long or short) for a different delivery date (such replacement of one leg being referred to as a switch). For example, here, in Stoller v. Commissioner, T.C. Memo. 1990-659, with respect to the cancellations in question (except for one group, the November 25 group), we found that the partnership wished to change delivery dates in order to shorten the window of risk of the straddle.
In the case of a straddle built on rfc’s, the mechanics of a switch would involve the taxpayer’s simultaneously entering into (1) an inverse contract with respect to the long or short RFC being switched and (2) a like (long or short) RFC to replace the RFC being switched. Except perhaps in the case of certain tax-motivated straddles, see, e.g., Smith v. Commissioner, 78 T.C. 350 (1982), gain or loss on the long RFC component of the offsetting pair would immediately be realized and recognized, Commissioner v. Covington, 120 F.2d 768 (5th Cir. 1941). In the case of a straddle built on forward contracts, the parties to the contract to be switched may agree to cancel that contract, settling up with respect to any gain or loss in the contract. To avoid being naked with respect to the remaining leg of the straddle, the straddling party would immediately enter into a contract to replace the canceled contract and complete the switch. The character of any gain or loss to be accounted for on the cancellation is the issue in this case, but there seems to be no disagreement that cancellation is an event giving rise to an allowable loss. In the case of a switch made by first entering into an inverse contract with the same party, the suggestion of Hoover Co. v. Commissioner, 72 T.C. 206 (1979), is that gain or loss is realized upon the hypothetical delivery under the short contract of the offsetting pair on the settlement date or on any earlier date that the parties consummate a cash settlement. That suggestion as to timing, however, is thrown into doubt by the majority. There seems to be no disagreement, however, that the gain or loss is realized from a sale or exchange. The second step in the switch would be exactly the same as if the switch were initiated by canceling the to-be-switched leg; i.e., entering into a replacement contract.
E. Canceling Both Legs
The majority has not made clear that what it has called the Third Contract, see majority op. p. 210 (the November 25 group), involved straddles consisting of contracts that were all closed by cancellation on the same date. There was no switch of any leg and, consequently, no continuing straddle investment after the cancellations, all of which took place on November 25, 1980.
III. Majority’s Theory of Equivalence
I believe that the key to understanding the majority’s error is contained in the following sentence:
Whenever the investor (during the length or duration of the forward contracts that have been purchased) elects to settle, close out, extinguish, or cancel the contracts or positions, or one of the legs thereof, and to realize the gain or loss associated with the contracts, or with one of the legs thereof, and regardless of whether the investor “closes out” or “locks in” the gain or loss by way of offset, by way of cancellation and replacement contracts, or by way of cancellation and termination, the transaction is exactly the same — in purpose, in effect, and in substance — and produces exactly the same type of taxable gain or loss — in the instant cases capital gain or capital loss. [Majority op. p. 219; emphasis added.]
That sentence follows almost immediately after the majority’s citation of, and quotation from, Commissioner v. Covington, supra. The majority emphasizes those parts of the court’s opinion (1) describing the taxpayer’s argument that, pursuant to exchange rules, offsetting RFC’s are extinguished and a money settlement made and (2) finding that implicit in an exchange-regulated offset is the “agreement and understanding” that an actual purchase and sale of the underlying commodity has taken place. Majority op. p. 218. The majority finds that the agreement and understanding implicit in the exchange rules governing offsets of RFC’s is apropos the cancellations of the forward contracts here in issue. Id.
The majority states:
Courts often must address taxpayers’ “artful devices” to convert ordinary gain into more favorable capital gain or to convert capital loss into more favorable ordinary loss. * * * That task should be accomplished on the basis not of the “cancellation” label used by the parties but on the realities of the transactions and expectations of the parties. [Majority op. p. 222; emphasis added.]
The majority obviously concludes that the common reality of (1) exchange-regulated offsets, (2) the bilateral relationship of the two parties to offsetting forward contracts, and (3) the terminated relationship of the parties to a canceled forward contract is a sale or exchange. Indeed, the majority states that, in Stoller v. Commissioner, T.C. Memo. 1990-659, affd. in part and revd. in part 994 F.2d 855 (D.C. Cir. 1993), both this Court and the Court of Appeals for the District of Columbia Circuit erred in not recognizing “the fundamental sale or exchange nature” of cancellations of forward contracts. Majority op. pp. 221-222.
The majority’s perception of fundamental reality is bottomed on the treatment accorded RFC’s settled by offset, as articulated in Covington v. Commissioner, supra. There, the taxpayer argued that the reality of an exchange-regulated offset is the lack of any actual sale or exchange because there is an extinguishment of the RFC settled by offset. The Court of Appeals for the Fifth Circuit, however, forced the taxpayer to abide by the form of the transaction he had chosen (as sculpted by the exchange rules dealing with offsets) and held that, in effect, he had entered into two contracts and realized a gain on closing the short contract. That is a perfectly appropriate result. See, e.g., Legg v. Commissioner, 57 T.C. 164, 169 (1971), affd. 496 F.2d 1179 (9th Cir. 1974), in which we stated: “A taxpayer cannot elect a specific course of action and then when finding himself in an adverse situation extricate himself by applying the age-old theory of substance over form.”
The fiction imposed on a taxpayer that settles RFC’s by offset, however, is not a ground to conclude that, in reality, a taxpayer not engaging in an exchange-regulated offset (indeed, not engaging in an offset at all) entered into a hypothetical contract to complete the purchase and sale of a commodity that he never owned. Assume, for instance, that the taxpayer has constructed a straddle in X commodity, entering into a long May forward contract and a short September forward contract. Assume further that there is an unrealized loss in the short contract, and, for legitimate business reasons, the taxpayer wishes to switch the short contract to a December forward contract. The taxpayer cancels the short September contract, makes a cash settlement payment, and enters into a short December contract. The reality that the majority would impose is that the taxpayer entered into a long September contract under which, hypothetically, he took delivery of the commodity, which was used to satisfy the short September contract. To me, that is not reality; it is a fiction built upon a fiction.
As a matter of tax policy, perhaps the cancellation of a forward contract should be treated as a zero dollar sale so as to satisfy the sale or exchange requirement of section 1222. Congress thinks so and has added section 1234A, which, however, is not effective with respect to the facts of this case.
The majority’s understanding of the “nature of the termination of offsetting forward contracts”, majority op. p. 220, is illustrated by certain forward contracts in this case. That perspective is set forth as follows: “Upon closing by offset of forward contracts, the transaction is terminated and extinguished, settlement between the parties occurs at that time, and no contracts remain in effect.” Id. If that is intended as a general statement of fact or of legal consequence, it is unsupported by any authority and is in apparent contradiction to our findings and opinion in Hoover Co. v. Commissioner, 72 T.C. 206 (1979). Certainly, it is in contradiction to the understanding of the facts in this case by the Court of Appeals for the District of Columbia Circuit. In reversing us in part, the court said:
The problem with the Tax Court’s reasoning is that cancellation and offset are different in substance as well as in form. When a contract is can-celled it simply ceases to exist. When a contract is offset, both the original contract and the offsetting contract remain in effect until the date for delivery. * * * [Stoller v. Commissioner, 994 F.2d at 857-858; emphasis added.]
The majority may be misled by the way the partnership accounted for offset transactions. It appears that the partnership accounted for unrealized gains and losses in forward contracts as of the offset date, the date of the inverse contract. That may or may not have been correct, but it is not evidence that the contracts were, by agreement, terminated on the offset date. More to the point, it is not evidence of general industry practice.
In addition, the majority suggests that, since “little, if anything, ‘vanished’ upon Holly’s closing or settling the loss legs”, sale or exchange treatment of those contract cancellations is appropriate. Majority op. p. 223. The majority recognizes that some contracts were not replaced (the November 25 group). Nevertheless, the majority explains that what remained after the contract cancellations was Holly’s continued participation in straddle transactions: “The last thing the investors would have wanted — upon the ‘cancellations’ in question — is to vanish or disappear from the rest of these straddle transactions, the consequence of which is that the investors might actually have had a real loss to pay.” Id. p. 224.
By juxtaposing cases involving “unexpected and true cancellations” of “regular commercial contracts for the provision of goods or services” (true cancellations) with the forward contract cancellations in issue, the majority purports to discern a fundamental difference that distinguishes true cancellations and explains the capital loss treatment appropriate for the contracts in issue. Id. at 222-223. The majority rejects true cancellation treatment for the contracts in issue by invoking what it considers Judge Friendly’s “substance and reality” analysis in Commissioner v. Ferrer, 304 F.2d 125 (2d Cir. 1962), revg. and remanding 35 T.C. 617 (1961). Believing that the “situation” here is the same as in the Ferrer case, the majority slaps together the whole of the partnership’s straddle activities into a unitary endeavor that justifies disregarding (partially) each individual step.
I believe that the majority has failed to appreciate the significance of Judge Friendly’s analysis in the Ferrer case and, therefore, may not seek its blessing. In that case, involving the purported termination of certain dramatic production contract rights, Judge Friendly stated:
Tax law is concerned with the substance, here the voluntary passing of “property” rights allegedly constituting “capital assets,” not with whether they are passed to a stranger or to a person already having a larger “estate.” So we turn to an analysis of what rights Ferrer conveyed. [Id. at 131.]
Judge Friendly then engaged in an examination of the nature of the various rights in issue in that case. He believed that the principal distinction between a termination of contract rights that gives rise to capital gain and a termination that does not is the existence of an “equitable interest” in the holder of the rights being terminated, which interest is evidenced by the availability of equitable relief in the enforcement of the contract rights. Id. at 131-134.2 It is, thus, insufficient for the majority to consider all of the partnership’s straddle investments, each straddle transaction, or even each forward contract and to pronounce baldly that the partnership “received exactly what it contracted for.” Majority op. p. 223. Nor is it sufficient to rely on the parties’ stipulation that the forward contracts in issue constitute capital assets. What is required is a careful consideration of the partnership’s property interests in the subject matter of the contracts in question, in light of Congress’ admittedly indistinct purpose in providing for the exceptional treatment of capital gains and losses. In sum, the majority has failed to examine the nature of the contract rights terminated by the cancellations of the forward contracts in issue in the manner contemplated by Judge Friendly and, therefore, is foreclosed from relying on Commissioner v. Ferrer, supra, to support its substance and reality analysis.
Another difficulty with the rationale of the majority is the majority’s failure to explain the steps by which it proceeded to conclude that the cancellation losses were losses from the sale or exchange of capital assets. Section 1001 addresses the determination of gains and losses on the disposition of property. The sale or exchange requirement for capital gain or loss treatment is introduced in section 1222. The majority has failed to explain exactly what property was disposed of when a forward contract was canceled, how the partnership’s adjusted basis in the disposed-of property was determined, or what amount was realized on such disposition. I must admit that I am puzzled by those questions, as I am puzzled by how Judge Friendly’s “equitable interest” analysis could be applied to find a capital loss in a situation where the last thing the partnership intended was actual delivery of the underlying securities that were the subject of the forward contracts in question. Given Congress’ enactment of section 1234A, I see no reason to engage in an analysis that may result in consequences we cannot foresee.
IV. Conclusion
Professors Bittker and Lokken, in their treatise on Federal income, gift, and estate taxation, address the principle that substance must govern over form in taxation. Bittker & Lokken, Federal Taxation of Income, Estates and Gifts, par. 4.3.3, at 4-33 (2d ed. 1989). They begin their discussion by noting that the substance-over-form principle has been referred to as “the cornerstone of sound taxation” (quoting Estate of Weinert v. Commissioner, 294 F.2d 750, 755 (5th Cir. 1961), revg. and remanding 31 T.C. 918 (1959)). Id. In the course of their discussion, they state (without citation of authority, but none is needed): “If a transaction is consummated in a form that fairly reflects its substance, it ordinarily passes muster despite the conscious pursuit of tax benefits; in this case, the choice of form resembles an election provided by statute.” Id. at 4-38. They caution, however:
A rogue offshoot of the substance-over-form doctrine suggests that when a taxpayer selects one of several forms that have identical practical consequences in the real world, the government can disregard the chosen form and tax the transaction as though the most costly of the alternatives had been employed. * * * [Id. at 4-41.]
They continue: “On close inspection, the most-costly-alternative theory turns out to be a drastic extension, rather than a mere restatement, of the substance-over-form doctrine.” Id. at 4-42.
The majority has not invoked much of the substance-over-form jurisprudence. It has, however, looked for the “realities of the transactions” and raised the specter of “artful devices”. I believe that it is fair to say that the majority has looked to tax the cancellation transactions on the basis of what it considers to be their substance. In searching for that substance, however, the majority has dug no deeper than the fiction that accounts for the tax treatment of exchange-regulated offsets and forward contracts settled by offset and payment. Indeed, with respect to offsetting forward contracts, the majority appears to conclude, wrongly, that all such contracts cease to exist on the offset date. The reality of the settlement of anticipatory contracts by offset is not that the contract holder took delivery under a long contract of a commodity that he then used to satisfy his delivery obligation under a short contract. That is a fiction imposed on the taxpayer because of the way he chose to cast his transaction. To impose that fiction on a taxpayer who, for whatever reason, chose not to cast his transaction that way seems to me to be wrong, at least without some better explanation than the majority gives. From a policy perspective, I can sympathize with the majority’s concern that a taxpayer should not be able to lower his tax bill simply on the basis of which form, as between two economically equivalent (or similar) forms, he chooses. The majority’s concern is apparent in how, in part, it frames the issue in this case: “whether the taxpayers can convert the capital loss into an ordinary loss”. Majority op. p. 217 (emphasis added). That statement suggests that the proper inquiry is the proper tax characterization of the cancellations, not whether, tax questions aside, form and substance agree. To me, that is a troublesome inquiry for the reasons stated by Professors Bittker and Lokken.
My research has also led me to two helpful articles dealing with both the mechanical and tax aspects of anticipatory commodities transactions, at least as those matters stood in 1981, which is about the date of the transactions involved herein. Schapiro, “Commodities, Forwards, Puts and Calls — Things Equal to the Same Things Are Sometimes Not Equal to Each Other”, 34 Tax Law. 581 (1980-81); Schapiro, “Tax Aspects of Commodity Futures Transactions, Forward Contracts and Puts and Calls”, 39th Annual N.Y.U. Tax Inst. 16-1 (1981).
That understanding of Judge Friendly’s analysis has been stated by two commentators: Chirelstein, “Capital Gain and the Sale of a Business Opportunity: The Income Tax Treatment of Contract Termination Payments”, 49 Minn. L. Rev. 1, 20-23 (1964); Eustice, “Contract Rights, Capital Gain, and Assignment of Income — the Ferrer Case”, 20 Tax L. Rev. 1, 7-9 (1964).