*62 This case was submitted for the limited purpose of deciding whether petitioner husband qualified as a "commodities dealer in the trading of commodities" as provided in sec. 108(b) of the Deficit Reduction Act of 1984, as amended by the Tax Reform Act of 1986. Petitioner husband was a commodities investor and was employed as an account executive with a brokerage firm. He was registered as an associated person with the Commodity Futures Trading Commission (CFTC) and as a registered commodity representative with the Chicago Board of Trade. He was not a member of any commodities exchange, and was not a floor trader or floor broker. He was required to use the services of a floor broker to place an order. Petitioners also invested some of their own funds in commodities straddles. Petitioner husband made the investment decisions for some of those funds, and his brother decided how to invest the remainder. Petitioners incurred substantial losses in commodities straddles transactions in 1980, for which they claimed deductions. Held, petitioner husband's status as an investor and associated person does not qualify him as a "commodities dealer in the trading of commodities" for purposes*63 of sec. 108 of the Deficit Reduction Act of 1984, as amended by the Tax Reform Act of 1986.
*893 OPINION
The sole issue for decision is whether petitioner Richard Kovner was a "commodities dealer in the trading of commodities" within the meaning of section 108(b) of the Deficit Reduction Act of 1984, Pub. L. 98-369, 98 Stat. 630, as amended by section 1808(d) of the Tax Reform Act of 1986, Pub. L. 99-514, 100 Stat. 2817. As described below, we hold that petitioner was not a "commodities dealer in the trading of commodities" for purposes of section 108(b).
The parties agreed to submit this case for the limited purpose of deciding whether petitioner was a commodities *894 dealer in the trading of commodities under section 108(b). We treat this as we would a*64 motion for partial summary judgment. Other issues were left for later disposition. Thus, this opinion does not decide whether petitioners may deduct commodities losses under section 108(a).
Respondent determined deficiencies in petitioners' 1980 and 1981 Federal income taxes of $ 104,528 and $ 27,831, respectively, and additional interest pursuant to section 6621(c), formerly section 6621(d).
Unless otherwise noted, all section references are to the Internal Revenue Code as amended and in effect for the year at issue. Also, unless otherwise noted, the term "section 108" refers to section 108 of the Deficit Reduction Act of 1984, as amended by the Tax Reform Act of 1986.
Factual BackgroundThe issue of petitioner Richard Kovner's status as a commodities dealer for purposes of section 108 was submitted fully stipulated.
Petitioners resided at Emerson, New Jersey, at the time they filed their petition. Petitioners filed joint income tax returns for 1980 and 1981, the years in issue. All references to petitioner, singularly, are to Richard Kovner.
1. Petitioner's Commodities Industry Registrations
Since 1975, petitioner has been registered with the Commodity Futures Trading*65 Commission (CFTC) as an associated person of Rosenthal & Co., a futures commission merchant (FCM). An associated person (AP) is a partner, officer, or employee of a futures commission merchant (or an agent thereof) who solicits or accepts customers' orders, other than in a clerical capacity (or a person who supervises persons so engaged).
Petitioner was not a member of a commodities exchange (i.e., a contract market). A member of a contract market is an individual, corporation, partnership, *66 etc., who owns or holds membership in a contract market or who is given members' trading privileges thereon.
Petitioner was not a floor trader. A floor trader is a member of a contract market who, on the floor of such market, executes a futures trade or a commodity option transaction for his own account or an account controlled by him, or has such a trade made for him.
Petitioner was not a floor broker. A floor broker is any person who, in or surrounding any pit, ring, post, or other place provided by a contract market for the meeting of persons similarly engaged, purchases or sells for any other person any commodity for future delivery subject to the rules of any contract market.
Petitioner, as an associated person employed by a futures commission merchant, was required to use the services of floor brokers to execute orders.
On January 5, 1976, petitioner registered as a registered commodity representative (RCR) on the Chicago Board of Trade (CBOT). As defined by CBOT rules and regulations (CBOT rule 938.00), an RCR is a member or nonmember who solicits, accepts, or services business for*67 a member. Petitioner's registration remained in effect until March 11, 1986. The CBOT also requires registration of members, membership interest holders, floor clerks, and broker's assistants.
Only a member can conduct transactions or execute orders in securities or commodities upon the floor of the CBOT. CBOT rule 301.00. There are three types of membership: full, associate, and conditional associate. Certain restrictions apply to floor trading by associate and conditional associate members. CBOT rules 211.00 and 212.00. Associate memberships are issued in 1/4 participation (membership interests) and are freely transferrable to any approved applicant. CBOT rule 211.00.
*896 Neither the CFTC nor the CBOT limit contract market memberships to those employed in particular occupations or living in specific geographic areas. See
*68 Petitioner was also registered during 1976 with the Chicago Mercantile Exchange (CME). Both the CBOT and CME are domestic boards of trade and are designated as a contract market by the CFTC.
2. Petitioner's Entry Into the Commodities Industry and Employment With Rosenthal & Co.
In 1976 and 1977, petitioner engaged in a program of learning and studying the commodities market. He read commodities books and periodicals, made contacts in the commodities industry, and began to keep commodity price charts. In addition, he also began "paper trading," i.e., imaginary trading. In 1978, petitioner began to engage in commodities transactions on his own account. Petitioner decided which commodities to buy and sell.
During 1980 and 1981, petitioner was employed as an account executive by Rosenthal & Co. (Rosenthal). As a futures commission merchant (FCM), Rosenthal was in the business of executing, as agent, commodities futures contracts at the direction of and for the account of its customers. Petitioner's responsibilities as an account executive included: soliciting customers for the purpose of opening commodity futures trading accounts with Rosenthal, providing information to customers*69 regarding trends and other developments affecting various commodities, making recommendations regarding the purchase or sale of particular commodity futures contracts, and accepting and placing orders on behalf of customers.
Petitioner was a salesman for Rosenthal. He placed orders for customers, which were then forwarded to the trading floor for execution.
To place an order for customers, petitioner wrote an order ticket which reflected the commodity, quantity, and price of *897 the futures contract to be purchased or sold. The order ticket was then given to the Rosenthal order desk which transmitted the information to the appropriate exchange floor where it was executed by a floor broker. As an account executive, petitioner received a percentage of gross commissions generated on trades executed on behalf of and for the account of customers.
Throughout the 1980-81 period, petitioner had about 8-12 customers, mostly friends and family. These included his brother-in-law, Jeffrey Bender; his father, Isidore Kovner; his accountant, Elliot Goldberg; as well as individual accounts for his business associates Michael Appell and Harvey Klaris. Petitioner made the investment decisions*70 for these accounts.
Petitioner placed orders for contracts listed on most U.S. exchanges designated as contract markets by the CFTC. During 1980-81, petitioner placed orders for regulated futures contracts virtually every day. He was engaged approximately 50-60 hours per week in placing orders for commodities, monitoring commodities markets, and providing related advice to customers.
3. Kovner Associates and Comart
In 1980, petitioner formed Kovner Associates, Inc., to invest in commodities for himself and others. In 1981, the corporation's name was changed to Comart, Inc.Comart sought to match clients with commodities brokers best suited to their needs.
Although the tax years at issue here are 1980 and 1981, we note that in 1983 Comart became an introducing broker with the CFTC. An introducing broker is any person who, for compensation or profit, solicits or accepts orders for the purchase or sale of any commodity for future delivery subject to the rules of any contract market and who does not accept money, securities, or property (or extend credit in lieu thereof) to margin, guarantee, or secure any trades or contracts that result therefrom. An introducing broker*71 does not include a futures commission merchant, floor broker, or associated person acting in its capacity as such.
*898 4. Petitioners' Commodities Accounts
Petitioners had three separate investment accounts. The sole name on the first account was petitioner's wife, Joyce Kovner. Upon inception, this account had approximately $ 20,000 in equity. As the market fluctuated, the equity ranged between $ 6,064 and $ 66,599. Petitioner made the investment decisions for this account.
The sole name on the second account was also Joyce Kovner. Petitioner's brother, Bruce Kovner, made the investment decisions for that account under a power of attorney. The equity in this account ranged from $ 115,000 to $ 140,000.
The third account was held by MNA Commodities Investors (MNA). MNA was a partnership engaged in buying and selling commodities of which petitioner was the managing partner. Petitioners invested $ 50,000 of the initial $ 165,000 total capital invested in MNA, and the other partners contributed the balance. Petitioner made the investment decisions for this account, placed the orders, *72 and managed the partnership.
Petitioners had approximately $ 171,000 to $ 266,000 of their own funds in commodities markets during 1980 and 1981. This represented a substantial part of their net worth at that time. During this time, petitioner received most of his earnings from commodities transactions.
5. Summary of Petitioners' Commodities Accounts
Petitioners' accounts are summarized below:
| Did petitioner make | |||
| investment account | |||
| Account amount | decisions for the | ||
| Account | (Equity range) | account? | |
| Rosenthal -- | $ 6,000 | $ 66,600 | yes |
| Joyce Kovner | |||
| Cargill -- Joyce Kovner | 115,000 | 140,000 | no |
| Cargill -- MNA | 50,000 | 1 59,400 | yes |
| Total | 171,000 | 266,000 | |
*899 DISCUSSION
The sole issue for decision is whether petitioner is a "commodities dealer in the trading of commodities" within the meaning of section 108(b) of the Deficit Reduction Act of 1984, as amended by the Tax Reform Act of 1986.
1. Background
In 1981, Congress was concerned about the rapid growth in use of commodities spreads and straddles*73 as a tax shelter. The Ways and Means Committee Report for the Tax Incentive Act of 1981, which was their report for the bill that later became the Economic Recovery Tax Act of 1981 (ERTA), states in pertinent part:
The committee is concerned about the rapidly increasing use of transactions in commodity-related property to shelter unrelated income from taxation. Such shelters, usually structured as straddles or spreads, have been used by both individual and corporate taxpayers to defer income and frequently to convert ordinary income or short-term capital gain into long-term capital gain. These shelters have been widely publicized, promoted by brokerage firms and offered as limited partnership interests in domestic and off-shore syndicates. The growth of these shelters threatens to undermine the integrity of the United States' voluntary tax-assessment system and to create substantial revenue losses. [H. Rept. 97-201, at 198 (1981).]
In a similar vein, the Senate Finance Committee Report for ERTA states that:
In the last ten to fifteen years, the use of * * * tax shelters in commodity futures has extended beyond investment professionals to significant numbers of taxpayers, individual*74 and corporate, throughout the economy. The tax advantages of spread transactions, especially those structured in commodity futures contracts, have been touted in commodity manuals, tax services and financial journals. Brokerage firms have promoted tax spreads or straddles to their clients. Domestic and offshore syndicates have advertised tax straddle shelters for which purchasers pay a fee in an amount equal to a percentage of their desired tax loss. [S. Rept. 97-144, at 146 (1981).]
As a result of these concerns, Title V of ERTA, Pub. L. 97-34, 95 Stat. 172, contained provisions to prevent the deferral of income and conversion of ordinary income and short-term capital gain into long-term capital gain through commodities transactions.
*900 The 1981 commodities straddles provisions did not provide rules for disposition of pre-ERTA straddles cases then before the Internal Revenue Service. In 1984, the Senate Finance Committee believed that there were too many of these cases still remaining at the Internal Revenue Service. Its version of the Deficit Reduction Act of 1984 included a provision to require the Secretary of the Treasury to report to the tax-writing committees of*75 Congress on the status of those cases. H. Rept. 98-861 (Conf.), at 917 (1984), 1984-3 C.B. (Vol. 2) 171. The conference agreement substituted a provision intended to reduce the number of remaining pre-1982 cases. Sec. 108; H. Rept. 98-861 (Conf.), supra.
2. Deficit Reduction Act of 1984 -- Section 108
Section 108(a) of the Deficit Reduction Act of 1984, Pub. L. 98-369, 98 Stat. 630, generally permitted the deductibility of losses incurred on the disposition of one or more positions entered into before 1982 and which form part of a straddle, if the position was part of a transaction entered into for profit. Section 108(b) of the Deficit Reduction Act of 1984, as applied to commodities dealers and persons regularly engaged in investing in regulated futures contracts, created a rebuttable presumption that the transaction was entered into for profit.
For the text of section 108(a), (b), and (f), and the related text of the Conference Report to the Deficit Reduction Act of 1984, H. Rept. 98-861 (Conf.)(1984), 1984-1 C.B. (Vol. 2) 1, see appendices A and B.
3. Tax Reform Act of 1986
The Tax Reform Act of 1986 made*76 technical corrections to section 108. Sec. 1808(d) of the Tax Reform Act of 1986, Pub. L. 99-514. The 1986 amendments limited section 108(b) to commodities dealers in the trading of commodities. The 1986 act also eliminated the rebuttable presumption and substituted a per se rule that any loss incurred by a commodities dealer in the trading of commodities shall be treated as a loss incurred in a trade or business. For the text of the Tax Reform Act of 1986 amendments to section 108(a) and (b), see appendix C.
*901 It appears that the intent in amending section 108 in 1986 continued to be to provide a rule to reduce the number of pre-ERTA straddles cases at the Internal Revenue Service. The Conference Report for the Tax Reform Act of 1986 states that:
the conferees clarify their intent that the Internal Revenue Service bring all outstanding pre-ERTA straddle litigation to a speedy resolution, so that the large docket of cases on this issue may be cleared in a manner consistent with this legislation. [H. Rept. 99-841 (Conf.) at II-845 (1986), 1986-3 C.B. (Vol. 4) 845.]
For the text of the House Ways and Means Committee Report, H. Rept. 99-426*77 (1985), 1986-3 C.B. (Vol. 2) 1, and the Conference Report to the Tax Reform Act of 1986, H. Rept. 99-841 (Conf.) (1986), 1986-3 C.B. (Vol. 4) 1, see appendix D.
The 1984 and 1986 versions of section 108(a) and (b) are compared below:
| Deficit Reduction | Tax Reform Act |
| of 1984 | of 1986 |
| SECTION 108 | |
| (a) any loss from such disposition shall be allowed for the taxable year of | |
| the disposition * * * | |
| * * * if such position | * * * if such loss is |
| is part of a transaction | incurred in a trade or |
| entered into for profit | business, or if such loss is |
| incurred in a transaction entered | |
| into for profit though not | |
| connected with a trade or | |
| business. | |
| (b) Presumption That | (b) Loss Incurred in a |
| Transaction -- | |
| Entered Into for Profit -- | Trade or Business -- |
| For purposes fo subsection (a), | For purposes of subsection (a), |
| any position held by a | any loss incurred by a |
| commodities dealer or any person | commodities dealer in the trading |
| regularly engaged in investing in | of commodities shall be treated as |
| regulated futures contracts shall | a loss incurred in a trade or |
| be rebuttably presumed to be part | business. |
| of a transaction entered into for | |
| profit. | |
*78 *902 4. Commodities Dealer in the Trading of Commodities
As stated, the 1986 act limited section 108(b) to a "commodities dealer in the trading of commodities." We will next discuss the definition of commodities dealer for purposes of section 108.
Section 108(f) refers to a definition of commodities dealer used for the self-employment tax provisions.
Under
*79 a. Actively Engaged in Trading
Respondent's position is that petitioner's activities as a commodities broker and investor do not constitute the "trading" of
Petitioner concedes that he was not a floor trader, floor broker, or member of a commodities exchange, but he maintains that he was actively engaged in "trading" regulated futures contracts (RFC's) in 1980 and 1981 as an investor and for customers.
This is a case of first impression in that we have not previously decided whether an associated person qualifies as a "commodities dealer in the trading of commodities" under section 108(b), as amended. But we note that in two other cases in which we considered the applicability*80 of section 108(b) of the Deficit Reduction Act of 1984, the parties agreed that the taxpayer, who was a member of a domestic exchange, was a commodities dealer.
In
In
*82 *904 Even where the statutory language appears clear on its face, a court may seek out any reliable evidence as to legislative purpose.
We next turn to an examination of the legislative history of section 108(b).
We recognize that petitioner was engaged full-time in commodities transactions. However, this does not necessarily make him eligible to deduct losses under section 108(b).
In its report for what became the Tax Reform Act of 1986, the House Ways and Means Committee stated that the deductibility of losses by a commodities dealer eligible for section 108(b) is not interchangeable with the deductibility of losses in a trade or business under section 162. The report stated that the treatment of an individual as a commodities dealer as defined in section*83 108(b) is only for purposes of section 108(a), and "no inference should be drawn that a loss is incurred in a trade or business for any other purpose, such as for purposes of section 162." H. Rept. 99-426, at 911 (1985), 1986-3 C.B. (Vol. 2) 911.
The Conference Report for the Deficit Reduction Act of 1984 states: "A commodity dealer is any person registered with a domestic board of trade designated as a contract market by the CFTC who buys or sells options or RFC's subject to the rules of such board." H. Rept. 98-861 (Conf.), at 910 (1984), 1984-3 C.B. (Vol. 2) 164.
We believe this language was intended to exclude associated persons (such as petitioner) from the definition of commodities dealer. Associated persons solicit and accept customer orders,
The House Report to the Tax Reform Act of 1986 provides that section 108(b) will not apply in cases "where the*84 trades were * * * otherwise in violation of the rules of the exchange in which the dealer is a member." H. Rept. 99-426, at 911 (1985), 1986-3 C.B. (Vol. 2) 911. The Conference Report similarly states that if a person qualifies as a commodities dealer, section 108(b) treatment will apply to any position disposed of by such person whether or not such position "was traded on an exchange on which the dealer was a member." H. Rept. 99-841 (Conf.), at II-845 (1986), 1986-3 C.B. (Vol. 4) 845. This language from both the House and Conference Reports presumes that a person eligible for section 108(b) is a member of an exchange, unlike petitioner.
As originally enacted in 1984, section 108(b) applied to commodities dealers and to any person regularly engaged in investing in regulated futures contracts. Eligible persons were given a presumption of profit motive. The 1986 act changed the presumption to provide a per se rule that losses incurred by a commodities dealer on trades entered in compliance with the rules of the exchange are treated as losses incurred in a trade or business. See
The Conference Report to the Tax Reform Act of 1986 states that "if an individual owns a seat on a commodities exchange, such individual will be treated as a 'commodities dealer.'" H. Rept. 99-841 (Conf.), at II-845 (1986), 1986-3 C.B. (Vol. 4) 845.
This language establishes that an individual who owns a seat on (i.e., is a member of) an exchange is a commodities dealer under section 108(b). However, beyond that, the parties dispute its meaning. Respondent reads it to limit section 108(b) to members of an exchange. Petitioners read *906 it to merely make a category of persons automatically eligible for section 108(b). Even if we agreed with petitioners' view, the cited language itself does not go as far as petitioners need; it does not purport to extend section 108(b) to*86 brokers or investors, and we do not see support for that position elsewhere in the statute or legislative history. Deductions are a matter of legislative grace and are construed narrowly.
In view of the foregoing, we hold that, under the 1986 amendments, section 108(b) excludes brokers and investors who are not floor traders, floor brokers, or members of an exchange. Petitioner, as a commodities investor and broker, and as an AP or registered commodity representative (RCR), is not a "commodities dealer in the trading of commodities" for purposes of section 108(b) since he does not buy and sell commodities futures on the floor of, and subject to the rules of, an exchange. In so deciding, we do not necessarily limit eligibility for section 108(b) to owners of seats on an exchange; however, we do decide that AP's are excluded from section 108(b).
b. Registered With a Domestic Board of Trade
Neither the statute nor the rules of the CBOT defines "registered." The CFTC regulations, however, acknowledge several types of registration.
Having held above that petitioner was not actively engaged in trading
This opinion*88 decides petitioner's eligibility for section 108(b). Further proceedings will be required to dispose of other open issues in the case.
To reflect the foregoing,
An appropriate order will be issued.
APPENDIX A
DEFICIT REDUCTION ACT OF 1984 -- STATUTORY PROVISIONS
Section 108(a), (b), and (f) of the Deficit Reduction Act of 1984, Pub. L. 98-369, 98 Stat. 630-631, provides --
SEC. 108. Treatment of Certain Losses on Straddles Entered into Before Effective Date of Economic Recovery Act of 1981.
(a) General Rule. -- For purposes of the Internal Revenue Code of 1954, in the case of any disposition of 1 or more positions --
(1) which were entered into before 1982 and form part of a straddle, and
(2) to which the amendments made by title V of the Economic Recovery Tax Act of 1981 do not apply,
any loss from such disposition shall be allowed for the taxable year of the disposition if such position is part of a transaction entered into for profit.
(b) Presumption That Transaction Entered Into for Profit. -- For purposes of subsection (a), any position held by a commodities dealer or any person regularly engaged in investing in regulated futures contracts shall be rebuttably presumed*89 to be part of a transaction entered into for profit.
* * * *
*908 (f) Commodities Dealer. -- For purposes of this section, the term "commodities dealer" has the meaning given to such term by
APPENDIX B
DEFICIT REDUCTION ACT OF 1984 -- COMMITTEE REPORTS
The House version of the Deficit Reduction Act of 1984 (H.R. 4170, H. Rept. 98-432 and 98-432, Pt. 2) contained no provisions regarding the treatment of losses from pre-1982 straddles. The Senate amendment required the Secretary to report to the Senate Finance and House Ways and Means Committees with respect to progress made in reducing the backlog of cases involving the pre-ERTA treatment of RFC's. S. Prt. 98-169 (Vol. II), sec. 839 (1984).
In lieu of the Senate amendment's requirement of a report, the conference agreement included section 108 of the 1984 act, a noncode provision which specifically addressed pre-1982 straddles.
The Conference Report to the Deficit Reduction Act of 1984, H. Rept. 98-861 (Conf.), at 917 (1984), 1984-3 C.B. (Vol. 2) 171, states:
In the case of commodity dealers and persons actively*90 engaged in investing in RFCs, the provision is to be applied by presuming that the position is held as part of a transaction entered into for profit unless the Internal Revenue Service establishes to the contrary. In determining whether a taxpayer is actively engaged in trading in RFCs with an intent to make a profit, a significant factor will be the extent of transaction costs. If they are sufficiently high relatively to the scope of the taxpayer's activities that there is no reasonable possibility of a profit, the presumption will be unavailable. RFCs for purposes of applying the presumption are regulated futures contracts as defined in
For purposes of the provision, the term "commodities dealer" has the same meaning as such term in the amendments by the bill providing for application the self-employment income tax to such persons.
As defined in the 1984 Conference Report, H. Rept. 98-861 (Conf.), at 910 (1984), 1984-3 C.B. (Vol. 2) 164:
*909 A commodity dealer is any person registered with a domestic board of trade designated as a contract market by the CFTC who buys or sells options or RFCs *91 subject to the rules of such board. * * * The conferees intend that no inference be made as to whether options dealers and commodity dealers be viewed as engaged in a trade or business in connection with their transactions in
APPENDIX C
TAX REFORM ACT OF 1986 -- STATUTORY PROVISIONS
As amended by section 1808(d) of the Tax Reform Act of 1986, Pub. L. 99-514, 100 Stat. 2817, section 108(a) and (b) provides:
SEC. 108. Treatment of Certain Losses on Straddles Entered into Before Effective Date of Economic Recovery Act of 1981.
(a) General Rule. -- For purposes of the Internal Revenue Code of 1954, in the case of any disposition of 1 or more positions --
(1) which were entered into before 1982 and form part of a straddle, and
(2) to which the amendments made by title V of the Economic Recovery Tax Act of 1981 do not apply,
any loss from such disposition shall be allowed for the taxable year of the disposition if such loss is incurred in a trade or business, or if such loss is incurred in a transaction entered into for profit though not connected with a trade or business.
(b) Loss Incurred*92 in a Trade or Business. -- For purposes of subsection (a), any loss incurred by a commodities dealer in the trading of commodities shall be treated as a loss incurred in a trade or business.
* * * *
(f) Commodities Dealer. -- For purposes of this section, the term "commodities dealer" means any taxpayer who --
(1) at any time before January 1, 1982, was an individual described in
(2) was a member of the family (within the meaning of section 704(e)(3) of such Code) of an individual described in paragraph (1) to the extent such member engaged in commodities trading through an organization the members of which consisted solely of --
(A) 1 or more individuals described in paragraph (1), and
*910 (B) 1 or more members of the families (as so defined) of such individuals.
APPENDIX D
TAX REFORM ACT OF 1986 -- COMMITTEE REPORTS
Regarding the treatment of losses from pre-ERTA straddles, the House Ways and Means Committee Report, H. Rept. 99-426, at 910-911 (1985), 1986-3 C.B. (Vol. 2) 910-911, for the bill that became the Tax Reform Act of 1986, states:
Present Law
*93 Unlike taxpayers who conducted isolated straddle transactions prior to the effective date of ERTA solely for tax purposes, taxpayers in the trade or business of trading commodities conducted numerous straddle transactions in the normal course of their business. Section 108 was intended to clarify the treatment of losses claimed with respect to straddle positions entered into and disposed of prior to 1982 by taxpayers in the trade or business of trading commodities. It provided a profit-motive presumption in section 108(b) for such taxpayers because of the inherent difficulty in distinguishing tax-motivated straddle transactions from profit-motivated straddle transactions when the taxpayer was in the trade or business of trading in commodities.
Explanation of ProvisionThe bill makes clear that [sec. 108] subsection (b) treatment is limited to those taxpayers in the business of trading commodities. The determination of whether a taxpayer is in the business of trading commodities is based upon all the relevant facts and circumstances. Under the statute as clarified by the technical correction, generally a taxpayer engaged in the business of investment banking who regularly trades*94 in commodities as a part of that business would be considered in the trade or business of trading commodities. If a person qualifies as a commodities dealer, the subsection (b) treatment applies with respect to any position disposed of by such person. It would, for example, apply without regard to whether the position was in a commodity regularly traded by the person, whether it was traded on an exchange on which the dealer was a member, or whether an identical position was re-established on the same trading day or subsequently.
* * * *
A taxpayer who does not satisfy the indicia of trade or business status, such as the taxpayer in
The Senate version of the Tax Reform Act of 1986 did not amend section 108.
The Conference Report to the Tax Reform Act of 1986, H. Rept. 99-841 (Conf.), at II-845 (1986), 1986-3 C.B. (Vol. 4) 845, states:
The conference agreement follows the House bill. Under the statute as clarified by the technical correction, generally a taxpayer engaged in the business of investment banking who regularly trades in commodities as a part of that business would be considered in the trade or business of trading commodities. If a person qualifies as a commodities dealer, the subsection (b) treatment applies with respect to any position disposed of by such person. It would, for example, apply without regard to whether the position was in a commodity regularly traded by the person, whether it was traded on an exchange on which the dealer was a member, or whether an identical position was re-established on the same trading day or subsequently. The conferees also wish to clarify that if an individual owns a seat on a commodities exchange, such individual will be treated as a "commodities dealer." Further, if a trading firm also regularly trades*96 commodities in connection with its business, then the commodities trading will be deemed to be part of its trade or business. The latter rule applies only to the securities trading firm itself; it does not apply to separate individual trading of its partners, principals, or employees, nor to partnerships or other organizations formed for the principal purpose of marketing tax straddles.
* * * *
Further, the conferees clarify their intent that the Internal Revenue Service bring all outstanding pre-ERTA straddle litigation to a speedy resolution, so that the large docket of cases on this issue may be cleared, in a manner consistent with this legislation.
Whalen, J., dissenting: We are again confronted with section 108 of the Deficit Reduction Act of 1984, Pub. L. 98-369, 98 Stat. 630 (hereinafter section 108). In this case, we are called upon to decide whether petitioner qualifies as a "commodities dealer" within the meaning of section 108(b) *912 as amended by section 1808(d), Tax Reform Act of 1986, Pub. L. 99-514, 100 Stat. 2817.
The majority construes the term "commodities dealer" to exclude everyone other than floor traders, floor brokers, and members of an exchange. *97 In my view, there is no basis for such limitation in the statute or its legislative history. The majority arrives at this narrow construction by focusing on section 108(b), a provision of limited applicability intended to allow a deduction for certain pre-1982 straddle losses. The majority appears to overlook or dismiss as having "little or no practical effect" the impact of its opinion on the application of the self-employment tax to commodities traders and on their ability to contribute to qualified self-employment plans. (Majority op. at 902 note 2.) By limiting the term "commodities dealers" to floor traders, floor brokers, and members of an exchange, the majority limits the application of self-employment taxes to the same group. Other commodities traders escape self-employment tax on the gains and losses realized from their trading of
In general, section 108(b) treats losses from certain pre-1982 straddles as "incurred in a trade or business" and, thus, as losses deductible under section 108(a). The losses which qualify for such treatment are those incurred by a "commodities dealer in the trading of commodities."
For purposes of section 108(b), the term "commodities dealer" is defined by section 108(f) to mean "an individual described in
(B) Commodities dealer. -- The term "commodities dealer" means a person who is actively engaged in trading
Respondent's position is that the above definition prescribes a two-part test. First, he contends that "the term 'registered' as used in
The majority accepts respondent's construction of the "actively engaged" requirement. It construes the phrase "actively engaged in trading
Unlike the majority, I believe that qualification under the words "actively engaged in trading
Significantly, *102 the Deficit Reduction Act of 1984 added
Congress also enacted
The words "actively engaged in trading" are meant to identify "traders," as determined under the facts and circumstances analysis described above. Thus, in my view, the definition of commodities dealer in
In any event, there is nothing to suggest that Congress intended the term "commodities dealer" to refer only to floor traders, floor brokers, or members of an exchange. If Congress had wanted to limit the definition of commodities dealer to floor brokers, floor traders, and members of an exchange, it could have simply used those words, rather than the phrase "actively engaged in trading
*104 (2) Floor specialist. -- The term "floor specialist" means a person who is --
(A) a member of a national securities exchange,
(B) is registered as a specialist with the exchange, and
(C) meets the requirements for specialists established by the Securities and Exchange Commission.
Although the majority sets forth its view that Congress intended to limit the definition of "commodities dealer" to floor traders, floor brokers, and members of an exchange, it never explains how the words "actively engaged in trading
*916 Indeed, respondent's own regulation defining the term "commodities dealer" in
Q-7. Who qualifies as a commodities dealer or as a person regularly engaged in investing*105 in regulated futures contracts for purposes of the profit presumption?
A-7. For purposes of this section, the term "commodities dealer" has the meaning given to such term by
The*106 majority appears to base its narrow construction of the term "commodities dealer" solely on the legislative history of section 108. Although the majority admits that the "actively engaged in trading" requirement "appears clear on its face," it nevertheless undertakes an examination of the legislative history of section 108(b) on the ground that the Court "may seek out any reliable evidence as to legislative purpose." (Majority op. at 904.) While I agree that the Court can look to clear legislative history to construe the terms of an ambiguous statute, the majority appears to do the opposite. The legislative history cited by the majority is anything but clear, and thus the majority appears to rely upon ambiguous legislative history to vary the terms of a clear statute. Moreover, the majority appears to focus on the legislative history of section 108(b) and, in the process, loses sight of the broader implications of the term "commodities dealers" contained in
My principal objection is that the majority's narrow definition of the term "commodities dealer" for purposes of section 108 does not comport with the intended use of that *917 term for self-employment *107 tax purposes. In fact, as mentioned above, the definition at issue here is drawn from a self-employment tax provision,
In enacting this provision, Congress also intended that commodities dealers would thereby be entitled to treat gains and losses from their trading activity as "earned income" for purposes of section 401(c)(2) and the rules governing contributions to self-employment plans. H. Rept. 98-861, at 910 (1984), 1984-3 C.B. (Vol. 2) 164. Congress made a similar change to the Social Security Act. See sec. 102(c)(2), Deficit Reduction Act of 1984, *108 98 Stat. 622.
The definition of "commodities dealer" is the same under section 108 as it is under
For purposes of the provision [section 108], the term "commodities dealer" has the same meaning as such term in the amendments by the bill providing for application [of] the self-employment income tax to such persons. [H. Rept. 98-861, at 917 (1984), 1984-3 C.B. (Vol. 2) 171.]
Thus, the majority's construction of the term for purposes of section 108 governs for self-employment tax purposes. If, as the majority holds, only floor traders, floor brokers, or members of an exchange are "commodities dealers" for purposes of section 108, then only such persons are commodities dealers for purposes of
I see no reasonable basis to suppose that Congress intended to impose self-employment taxes on floor traders, floor brokers, and members of an exchange, but to allow other professional commodities traders to escape self-employment taxes. In defining the term "commodities dealer,"
Similarly, the legislative history of
Under the conference agreement, gains and losses derived*110 in the ordinary course of trading in
The majority's narrow construction of "commodities dealer" creates the anomalous result that only floor traders, floor brokers, and members of an exchange are subject to *919 self-employment tax on gains and losses from trading
By disregarding the overall purpose of the term "commodities dealer" as enacted by the Deficit Reduction Act of 1984, the majority drastically limits the application of self-employment taxes to commodities*112 traders and unfairly curtails the ability of certain commodities traders to make contributions to their self-employment plans. Accordingly, I respectfully dissent.
Footnotes
1. It has been said that "Memberships are broadly held both occupationally and geographically. Bankers, investment bankers, mortgage bankers, money market dealers, commercial manufacturing firms, brokers, futures commission merchants, and individuals such as lawyers, dentists, farmers, and shopkeepers own memberships." M. Powers and D. Vogel, Inside the Financial Futures Market 18 (1st ed. 1981).↩
1. This amount was derived by subtracting the amounts invested in the first and second accounts from the total funds invested.↩
2. This opinion decides whether an individual who is an associated person (AP) and investor is eligible per se to deduct commodities losses under sec. 108(b). As noted, sec. 108 refers to the definition of commodities dealer used for the self-employment tax provisions,
sec. 1402(i)(2)(B) .The
sec. 1402(i)(2)(B) definition of commodities dealer was made part of the Internal Revenue Code by the Deficit Reduction Act of 1984, Pub. L. 98-369, sec. 102(c), 98 Stat. 622. Its role in the self-employment tax scheme is as follows: Secs. 1401-1403 impose a tax on self-employment income. The tax on self-employment income applies to net earnings from an individual's trade or business.Sec. 1402(a) . However, it generally does not apply to gain or loss from the sale or exchange of a capital asset.Sec. 1402(a)(3)(A) .Sec. 1402(i) is an exception tosec. 1402(a)(3)(A) for certain dealings by commodities and options dealers. It provides that, in determining net self-employment earnings of an options or commodities dealer, "any gain or loss (in the normal course of the taxpayer's activity of dealing in or tradingsection 1256 contracts) fromsection 1256 contracts" or related property shall not be excluded.Sec. 1402(i) .Sec. 1402(i)(2)(B) defines commodities dealer.Thus, under
sec. 1402(i) , commodities dealers take into account gains or losses for self-employment tax purposes that would otherwise be disregarded bysec. 1402(a)(3)(A) .We note that an opinion dealing with AP's has little or no practical effect for self-employment tax purposes because AP's are usually employees,
7 U.S.C. sec. 6k (1982) ,17 C.F.R. secs. 1.3(aa) and3.12(a)-(c) (1982) ; 1 P. Johnson, Commodities Regulation, 118, 122 (1st ed. 1982), and, thus, would not usually come within the self-employment tax. In contrast, floor brokers historically have been self-employed. P. Johnson, supra↩ at 123.3. We note that CFTC regulations appear to use the term "traders" to include investors. For purposes of the CFTC's reportable position regulations,
17 C.F.R. secs. 15 through 19.10 , a trader is a person who, for his own account or for an account which he controls, makes transactions in commodity futures or options, or has such transactions made.17 C.F.R. sec. 15.00(e) . Investors appear to meet this definition, but were specifically excluded from the definition of commodities dealer by the 1986 TRA amendments to sec. 108(b).There is also apparently use in the commodities field of the term "trader" to include investors. See, e.g., M. Powers, Getting Started in Commodity Futures Trading 1-14 (4th ed. 1983); and M. Powers and D. Vogel, supra↩ at 22. In light of the deletion of investors from sec. 108(b) by the 1986 TRA, it is clear that all those that may be popularly referred to as commodities traders are not eligible for sec. 108(b).