The opinion
Nims, J., concurring: 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.
It 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.
If 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.
Wilbur, Whitaker, Hamblen and Cohen, JJ., agree with this concurring opinion.