¶1concurring: I agree with and have joined the majority opinion because I think it correctly and accurately expresses the intent of Congress in the enactment of section 108 of the Tax Reform Act of 1984. I write only to respond to the dissenting opinions filed by Chief Judge Dawson and Judge Simpson.
¶2It was my privilege to express the unanimous views of this Court in Smith v. Commissioner, 78 T.C. 350 (1982), where we held, on facts very similar to those now before us, that the taxpayers lacked the requisite profit motive under section 165(c)(2), I.R.C. 1954. That is not to say, however, that there was no reasonable prospect of any profit, small though it might have been. In its report, the Conference Committee expressed its awareness of Smith, but as is manifest from the language of the report, the Conference Committee chose to change the test in straddle cases from profit motive to profit potential; i.e., from a subjective to an objective test. In doing so, they unequivocally stated that a reasonable prospect of any profit suffices.
¶3If the practical effect in honoring the clearly expressed will of Congress is to grant amnesty to pre-1981 commodity tax straddlers, so be it. It is certainly not the proper function of this or any other Court to subvert the will of Congress by substituting the personal preferences of the Judges, and the majority prudently has not done so.
¶4dissenting: The majority opinion holds that losses realized in a straddle transaction will qualify as short-term losses so long as "it can be said” that the transaction offered a prospect of a nominal profit and even though the individual investor entered into the transaction not because of that prospect of a nominal profit but only for the likely tax losses to be generated therefrom. Under this test, an individual investor’s motive in entering into a particular straddle transaction is rendered irrelevant and immaterial. This change in the law (which focuses on what may occur in the marketplace to any investor and which disregards the specific motive of the individual investor who entered into the particular transaction in question) is directly contrary to the express language of section 108 and, in my opinion, is incorrect.
¶5As we recently stated—
The starting point for interpreting a statute is the language of the statute itself. E.g., Rosewell v. LaSalle National Bank, 450 U.S. 503, 512 (1981); Consumer Product Safety Commission v. GTE Sylvania, 447 U.S. 102, 108 (1980). Absent a clearly expressed legislative intention to the contrary, the language of a statute ordinarily must be regarded as conclusive. E.g., United States v. Turkette, 452 U.S. 576, 580 (1981); Consumer Product Safety Commission v. GTE Sylvania, supra at 108. … [Tamarisk Country Club v. Commissioner, 84 T.C. 756 (1985).]
¶6Thus, in considering herein the interpretation and significance to be given the relevant language from the Conference Committee report, the question should be asked whether the apparent focus of that language on what may happen in the marketplace (as distinct from the focus of the statutory language on the individual investor’s specific motive in entering into a particular straddle transaction) represents such a significant departure from the statutory language that the language of the Conference Committee report must be disregarded absent a clearer and unequivocal statement from Congress that that departure was intended.
¶7For the reasons set forth herein, and in the dissenting opinions of Chief Judge Dawson and Judge Simpson, I respectfully dissent.