# William F. Wehrly and Elizabeth Ann Wehrly v. United States

> Court of Appeals for the Ninth Circuit · June 20, 1986 · 808 F.2d 1311

URL: https://www.frixlaw.com/law-library/cases/9475713

## Case

- **Full name:** William F. WEHRLY and Elizabeth Ann Wehrly, Plaintiffs/Appellants, v. UNITED STATES of America, Defendant/Appellee
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** June 20, 1986
- **Citations:** 808 F.2d 1311; 1986 U.S. App. LEXIS 37449
- **Precedential status:** Published
- **Opinion:** Dissent by Fletcher
- **Judges:** Fletcher, Boochever, Aguilar
- **Cited by:** 20 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

FLETCHER, Circuit Judge,
dissenting:
I respectfully dissent. The majority relies essentially on one sentence in the Conference Committee Report that accompanied the Deficit Reduction Act of 1984 to conclude that Congress intended a different meaning for the phrase “transaction entered into for profit” in section 108 from its well-established meaning in other parts of the Internal Revenue Code. In 1938, the Supreme Court first interpreted this phrase to require that a taxpayer’s primary motive for entering into a transaction be profit. Helvering v. National Grocery Co., 304 U.S. 282 , 289 n. 5, 58 S.Ct. 932 , 936 n. 5, 82 L.Ed. 1346 (1938). “The subjective, primary purpose test has since been adopted as the standard to be applied in determining whether a transaction is ‘entered into for profit’ in cases arising under section 165(c)(2) and its predecessor, section 23(e).” Miller v. Commissioner, 84 T.C. 827, 851-52 (1985) (Simpson, J., dissenting) (citing cases). I cannot agree with the majority’s conclusion that in section 108 of the Deficit Reduction Act of 1984, Congress effected a radical change in the meaning of “transaction entered into for profit.”
I find persuasive the reasoning of the dissenting opinions in Miller in which the Tax Court split 10-8 on this precise issue. “[W]hen Congress used the phrase ‘transaction entered into for profit’ in section 108, its well-established meaning must have been evident to those working with the statute. We must presume that Congress intended such phrase to have the same meaning when used in section 108.” Id. at 852 . The “vague sentence” in the Conference Committee Report, see id. at 850 , on which the majority bases its holding, is countered by statements in the Congressional Record by Senator Metzenbaum and Representative Ottinger that give no indication that Congress intended to extend the relief of section 108 to all traders in tax straddles. See id. at 855-56 . More sub *1316 stantial evidence of Congress’s intent to change to an objective “reasonable expectation of any profit” standard is required to warrant a deviation from existing statutory interpretation. I also find persuasive the Government’s argument that the statutory scheme is skewed by the majority’s interpretation. It makes section 108(b)’s presumptions favoring dealers and regular investors superfluous.
I would hold that the district court properly instructed the jury that the losses were deductible only if the Wehrlys’ primary motive for entering into the transactions was to make a profit, and would accordingly affirm.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9475713. Public record. Not legal advice.