OPINION
NlMS, Judge:
This matter is before the Court on petitioner’s motion for reconsideration of findings and opinion. Petitioner was one of the petitioners in the London options consolidated group as to which the Court published an opinion denominated Glass v. Commissioner, 87 T.C. 1087 (1986) (Court-reviewed).
On November 23, 1987, the Court promulgated the following:
ORDER
On June 17, 1987, petitioner in the case at docket No. 3122-82 filed a Motion for Reconsideration of Findings and Opinion in Glass v. Commissioner, 87 T.C. 1087 (1986). Petitioner’s Motion for Reconsideration of Findings and Opinion in the case at docket No. 3122-82 was calendared for hearing on July 22, 1987. The parties in the case at docket No. 3122-82 were present at the July 22, 1987 hearing, and the hearing was continued to September 30, 1987. Upon due consideration, it is
ORDERED that petitioner’s Motion for Reconsideration of Findings and Opinion in Glass v. Commissioner, 87 T.C. 1087 (1986), is hereby granted in that the issues to be resolved in the case at docket No. 3122-82 are the following:
Whether the per se presumption applicable to the losses of a dealer under section 108 of the Deficit Reduction Act of 1984, as amended by section 1808(d) of the Tax Reform Act of 1986, is applicable to losses claimed with respect to straddle transactions undertaken on a foreign exchange not regulated by a United States entity or to straddle transactions which the Court has previously determined “lacked economic substance and w[ere] a sham.”
The parties in the case at docket No. 3122-82 submitted to the Court a statement of the above issues to be resolved. It is further
ORDERED that the case at docket No. 3122-82 is severed from the group previously consolidated on the London Option issue in Glass v. Commissioner, 87 T.C. 1087 (1986).
For convenience, section 108 of Division A of the Deficit Reduction Act of 1984, Pub. L. 98-369, 98 Stat. 494, 630, and the later amendment to section 108 made by section 1808(d) of the Tax Reform Act of 1986, Pub. L. 99-514, 100 Stat. 2085, 2817, are reproduced in Appendix A.
In our Glass opinion, we stated our understanding from the record that “The case before us does not involve commodities dealers.” (87 T.C. at 1167.) By amendment to petition filed with leave of Court on July 22, 1987, petitioner amended paragraph 5(c) of his petition to allege the following:
During all of 1976 and 1977, Petitioner was a commodities dealer within the meaning of section 1402(i)(2)(B) of the Internal Revenue Code of 1954.
In his responsive pleading, respondent admits that during 1976 and 1977, “petitioner was a commodities dealer within the meaning of section 108(f) of the Tax Reform Act of 1984, as amended by the Tax Reform Act of 1986.” Section 108(f) adopts the definition of “dealer” contained in section 1402(i)(2)(B).1 Consequently, at least insofar as petitioner is concerned, our statement in Glass that the case did not involve commodities dealers was inaccurate.
It having now been agreed that petitioner was a dealer during 1976 and 1977, the parties on brief focus their attention on the following questions:
(1) Whether the per se rule under section 108(b) is available for losses claimed from a “London options transaction” (defined in Glass, 87 T.C. at 1155) which the Tax Court has determined lacks economic substance and was a sham; and
(2) Whether the per se rule under section 108(b) is applicable to losses claimed from transactions undertaken on a foreign exchange that is not regulated by a U.S. entity.
At the time he filed his petition in this case, petitioner resided in Los Altos, California.
Respondent’s statutory notice determined deficiencies in petitioner’s income tax for the calendar years 1976 and 1977 in the amounts of $862,188 and $136,108, respectively. Although the statutory notice listed five different types of adjustments to petitioner’s taxable income, substantially all of the deficiency is attributable to the disallowance of capital losses in the amounts of $1,250,022.80 and $217,782.00 derived from his commodity straddle trading activities during 1976 and 1977, respectively. The only issue still contested by petitioner is whether any capital losses incurred by petitioner from his straddle trading activities during the years in issue were properly deducted.
Petitioner’s commodity straddle trading activities were based upon trading conducted on the London Metal Exchange (LME), and were executed by or through Competex, S.A., as broker/dealer. The trading strategy of Competex, S.A., vis-á-vis the so-called London options transaction, is described in detail in Glass and need not be repeated here. See 87 T.C. at 1107-1117.
During the course of the trial in Glass, the Deficit Reduction Act of 1984 (DEFRA) was enacted. Section 108(a) of DEFRA provided in general that certain losses from the disposition of one leg of a straddle entered into prior to 1982 were deductible if the straddle was entered into for profit. Section 108(b) of DEFRA also provided in general that straddle transactions of commodities dealers were rebutt-ably presumed to be entered into for profit.
Subsequently, section 108 of DEFRA was amended by section 1808(d) of the Tax Reform Act of 1986 (TRA-86). Amended section 108 of DEFRA (unless otherwise stated, all references hereinafter to “section 108” shall mean section 108 of DEFRA, as amended by section 1808(d) of TRA-86) provided that losses attributable to the disposition of a leg of a commodity straddle which were incurred in a trade or business before 1982 were deductible and that losses arising from the disposition of a straddle leg which were incurred by commodities dealers, as defined in section 1402(i)(2)(B), were deemed per se to be incurred in a trade or business.
In Glass, we held that no petitioner was entitled to deduct the commodity trading losses in issue because the transactions in which they were incurred lacked economic substance. We discussed section 108, but although we noted that “amended section 108 * * * makes it clear that losses incurred by commodities dealers trading in commodities are deductible under section 108 since they are losses incurred in a trade or business” (87 T.C. at 1167), we did not pursue this avenue because, as stated, we understood that “The case before us does not involve commodities dealers.” (87 T.C. at 1167.)
In King v. Commissioner, 87 T.C. 1213 (1986) (Court-reviewed), decided after Glass, we held that an individual commodities dealer who entered into straddle transactions prior to 1982 was entitled to deduct his losses under section 108 without regard to the existence of a profit motive. We held that this is a per se rule and no longer a rebuttable presumption. 87 T.C. at 1218-1219. After the decision in the King case was published, petitioner filed the motion under present consideration.
The parties were directed by the Court to make the same assumption for purposes of argument as the Court made in Glass; namely, “that the commodity options and futures contracts which [petitioner] entered into were actual contracts.”2 See Glass, 87 T.C. at 1172. Thus, just as in Glass, we focus our attention not on whether petitioner has sufficiently authenticated his transactions (i.e., proved that there were actual transactions), but rather whether such transactions, assuming they are proven to have occurred, fall within the ambit of the per se rule of section 108.
Petitioner’s Position
Petitioner asks the Court to conclude that, as a matter of law, losses incurred by petitioner in 1976 and 1977 from the disposition of certain commodity straddle positions were incurred in a trade or business and were therefore deductible. Petitioner’s contention “rests exclusively” (petitioner’s opening brief, p. 6) on section 108 (and very specifically section 108(b)) which, in relevant part, now provides as follows:
Sec. 108. TREATMENT OF CERTAIN LOSSES ON STRADDLES ENTERED INTO BEFORE EFFECTIVE DATE OF ECONOMIC RECOVERY TAX 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 * * *
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, * * *
(b) Loss Incurred 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 section 1402(i)(2)(B) of the Internal Revenue Code of 1954 (as added by this subtitle), * * *
Petitioner argues that during 1976 and 1977, the years in issue, he was a commodities dealer within the meaning of section 108(f), a fact not in dispute. During 1976 and 1977, he incurred losses from the disposition of commodity straddle positions. From this petitioner argues that under section 108 these two facts, taken together, inescapably lead to the conclusion that he must be irrebuttably presumed to have incurred losses in a trade or business and that such losses must be allowed.
For purposes of this proceeding, petitioner concedes that his commodity straddle transactions lacked economic substance and were a sham in the economic sense. (Petitioner’s opening brief, p. 6.)3 This is consistent with our holding in Glass. 87 T.C. at 1177.
Respondent’s Position
Respondent argues that the per se rule of section 108(b) is not available for losses claimed from the London options transaction because the transaction was not bona fide. The Court found the transaction to be a sham in substance, prearranged solely to achieve a tax-avoidance objective. As such, section 108(a) did not apply in determining whether the losses were allowable. Because section 108(a) was not at issue, the per se rule of section 108(b) does not come into play. Furthermore, Congress did not intend for the per se rule to apply to transactions that were fictitious pr prearranged. The London options transaction was prearranged.
Respondent also argues that the per se rule does not apply to transactions on foreign exchanges like the London Metal Exchange since an assumption that the transactions were bona fide cannot be made.
Petitioner maintains that the word “sham” can have more than one meaning, and that respondent can prevail on his sham argument only if petitioner’s transactions were a sham in the sense of being fake or fictitious, and cannot prevail if the transactions were a sham in the sense that they lacked profit motivation. He further maintains that there is no suggestion that economic substance is in any way a prerequisite to application of the per se rule of section 108. Petitioner thus implicitly concedes that the benefit of the dealer per se rule in section 108(b) is unavailable in commodity straddle cases involving fictitious transactions, despite the section’s flatly stated fiat.
Not surprisingly, petitioner places heavy emphasis upon our holding in King v. Commissioner, supra. Marlowe King was a registered member of the Chicago Mercantile Exchange (CME), a domestic board of trade subject to regulation by the Commodities Futures Trading Corporation (CFTC). King was a commodities dealer within the meaning of section 1402(i)(2)(B). During 1980 and 1981, King entered into certain gold straddles. Liquidation of certain of the legs of his straddle positions generated a short-term capital loss of $1,452,900 in 1980 which King deducted on his 1980 return and which the Commissioner disallowed.
King filed a motion for summary judgment asking for a ruling that, as a matter of law, the 1980 losses referred to in the preceding paragraph were deductible under section 108. The Commissioner sought to have King’s motion denied on three separate grounds:
(1) Taxpayer failed to address the threshold issue of whether the transactions at issue were shams;
(2) Taxpayer failed to show that he is entitled to the presumption under section 108(b) of the Tax Reform Act of 1984 and Temporary Treasury Regulations Section 1.165-13T; and
(3) Even if taxpayer were entitled to the presumption, a trial would nevertheless be required to resolve the “for profit” issue which is inherently factual. (87 T.C. at 1216.)
In King the deficiency notice asserted that “The transactions at issue were either shams or devoid of the substance necessary for recognition for federal income tax purposes.” (87 T.C. at 1216.) However, in his defense against King’s motion for summary judgment, the Commissioner failed to allege or support any facts tending to demonstrate that the transactions in question were shams in any sense. The taxpayer, on the other hand, included in his affidavit detailed facts supporting the bona fide nature of his trading in gold contracts. We held that “Under these circumstances, respondent has not shown that there is a genuine issue of sham for trial.” 87 T.C. at 1217.
In King we granted summary judgment for the taxpayer on the ground that the gold straddles were not fictitious, i.e., they were actual contracts, and, as previously stated, that the taxpayer was not required to show a profit motive. The Commissioner did not argue nor did we consider whether the straddles were prearranged and lacked economic substance. Cf. DeMartino v. Commissioner, T.C. Memo. 1986-263 (straddles which were prearranged, were not executed at free market prices, reflected virtually no changes in the spreads, and were executed in an abnormally thin market held to be shams).
While reaching the foregoing result in King, we nevertheless expressly refrained from drawing any conclusions as to what the result might be under other circumstances. In footnote 8, page 1219, of King, we said:
The per se rule of sec. 108(b) would not preclude us from finding for respondent in another case. The legislative history of the provision makes clear that it was not intended to apply “where the trades were fictitious, prearranged, or 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), at 911.] See also DeMartino v. Commissioner, T.C. Memo. 1986-263.
Respondent relies primarily upon our holding in Glass v. Commissioner, supra, that the London options transaction lacked economic substance and was therefore a sham. This conclusion was based not upon a finding that the commodity contracts were fake or fictitious, but rather on a finding that even if the straddles consisted of actual contracts (a fact which was left undetermined), the transactions, nevertheless, lacked economic substance and were a sham because the realization of tax losses in year one of the London options transaction was preordained. We further held that section 108 is not available to permit loss deductions where the sham involves a series of transactions having no business or profit-making function apart from obtaining tax deductions.4
Petitioner somewhat tangentially acknowledges that the legislative history of amended section 108 suggests an exception to the dealer per se rule by referring to the language quoted from the House report in footnote 8 of King. For completeness and in fairness to petitioner, we should also note that the Conference Committee statement of managers states that “If a person qualifies as a commodities dealer, the subsection (b) treatment applies with respect to any position disposed of by such person.” H. Rept. 99-841 (Conf.), at 11-845, 1986-3 C.B. (Vol. 4) 845.
This leads us to a consideration of two recent Circuit Court cases which, in analyzing the profit motive standard of the 1984 version of section 108, juxtapose diametrically opposing views as to the appropriateness of using the legislative history as an aid in construing the section 108 statutory language.
The first of these cases is Miller v. Commissioner, 836 F.2d 1274 (10th Cir. 1988), revg. 84 T.C. 827 (1985). The Circuit Court held that the phrase “transaction entered into for profit” found in section 108(a) is to be construed consistently with prior case law under section 165(c)(2), commencing with Helvering v. National Grocery Co., 304 U.S. 282 (1938), and followed for almost 50 years. 836 F.2d at 1278. In a footnote in National Grocery, the Supreme Court said that “the deductibility of losses under [the predecessor of section 165(c)(2)] may depend upon whether the taxpayer’s motive in entering into the transaction was primarily profit.” 304 U.S. at 289 n. 5. In King v. United States, 545 F.2d 700, 708 (10th Cir. 1976), the 10th Circuit had held that “in order to deduct a loss under sec. 165(c)(2) the taxpayer must show that profit was the primary motivation.” In Miller the 10th Circuit held that since section 108(a) is clear on its face in light of this past history, resort to the legislative history would be inappropriate. In so concluding, the court acknowledged that its decision was in conflict with that of the Ninth Circuit in Wehrly v. United States, 808 F.2d 1311 (9th Cir. 1986), discussed infra.
Following the 10th Circuit’s line of thought, it could be argued that a reading of the statutory language in the case now before us, without resort to the Committee reports, would go a long way in carrying the day for petitioner.
The second significant Circuit Court case is Wehrly v. United States, supra. In this case, the Ninth Circuit (the court to which this case would be appealed), construing the identical language of section 108 later construed by the Miller Circuit Court, held that the term “transaction entered into for profit” as used in section 108 allows a deduction for loss when the taxpayer had a reasonable expectation of profit, and does not require profit to have been the dominant motive of the transaction.5 In reaching this result, the Ninth Circuit found that the subject phrase was sufficiently ambiguous in the section 108 context to warrant a study of the legislative history for interpretative assistance. 808 F.2d at 1314. The court then went on to quote language in the Conference Committee report pointing toward the appropriate profit motive standard to be applied. 808 F.2d at 1314.
Section 108(b) in its present form is straightforward enough: “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.” (Emphasis added.) Nevertheless, as we have emphasized earlier, the House report flatly states that “the presumption would not be available in any cases where the trades were fictitious, prearranged, or otherwise in violation of the rules of the exchange in which the dealer is a member.” H. Rept. 99-426, at 911, 1986-3 C.B. (Vol. 2) 911.
The straddles in question were unquestionably prearranged, and petitioner does not dispute this. The next question is whether we may appropriately consider the legislative history in construing section 108(b), because the legislative history expressly provides a caveat to the per se rule. We believe that it is appropriate for us to do so.
In Perlin v. Commissioner, 86 T.C. 388, 419 (1986), we stated that “When interpreting a statute, and especially a new statute, a court may look to legislative history for interpretative assistance.” (Citations omitted.) See also King v. Commissioner, 87 T.C. at 1219 n. 7. The Supreme Court itself has said that “When aid to construction of the meaning of words, as used in the statute, is available, there certainly can be no ‘rule of law’ which forbids its use [footnote ref. omitted], however clear the words may appear on ‘superficial examination.’ ” United States v. American Trucking Associations., 310 U.S. 534, 543-544 (1940); quoted with approval in Train v. Colorado Public Interest Research Group, 426 U.S. 1, 10 (1976). We perhaps adumbrate the obvious by emphasizing this point, but we believe it is necessary to explain why we must go beyond a “superficial examination” of the straightforward language of section 108(b).
The “prearranged” language of the Committee report casts a shadow on the otherwise bright-line parameters of the per se rule. Therefore, where the transactions were prearranged, as here, we must examine them to ascertain whether the taxpayer actually incurred losses, a necessary precondition to the application of the per se rule.
In Glass, we stated that “the critical inquiry in this case must be whether the losses putatively incurred under petitioners’ tax straddle scheme * * * are deductible as claimed, or whether the London options transaction lacked economic substance and was therefore a sham.” (Emphasis added.) 87 T.C. at 1172. In Glass, the putatively incurred losses were central to transactions lacking economic substance and were therefore shams. In effect, then, no losses were incurred. It follows that the per se dealer rule is not available to petitioner since section 108(b) applies only to “any loss” incurred by a commodities dealer. Furthermore, we think it would be highly anomalous to disallow loss deductions to over 1,000 petitioners claiming them under the London options transaction, as we have done in Glass, while allowing them to petitioner, even though a dealer, on the self-same transaction.
On brief, petitioner argues that “Any argument that the transactions were prearranged within the meaning of footnote 8 in the King case [87 T.C. 1213 (1986)] because they were structured to produce no economic profit or loss cannot withstand scrutiny because it proves too much. Any taxpayer who entered into straddle transactions with a motive to make a profit apart from tax savings has no need to rely on section 108.”
The weakness in petitioner’s argument is amply illustrated by the Miller and Wehrly cases on appeal, supra, each of which applied a standard of proof to the “transaction entered into for profit” issue which differed from the other: “reasonable expectation of profit” in Wehrly versus profit as “primary motivation” in Miller. Section 108(b), however, absolves dealers of the need to meet any specific profit-motive standard so long as the dealer’s transactions are not fictitious, prearranged, or otherwise in violation of the rules of the exchange in which the dealer is a member. Compare Perlin v. Commissioner, 86 T.C. 388, 415-416 (1986), with DeMartino v. Commissioner, T.C. Memo. 1986-263. Thus, our holding does not, as petitioner argues, drain the per se rule of its vitality.
It bears repeating that in King v. Commissioner, 87 T.C. 1213 (1986), the Commissioner did not argue that the straddle transactions were prearranged, but merely asserted without further facts to support the assertion that the transactions were shams in the sense of being fake or fictitious. Consequently, this Court had no occasion to consider whether the transactions were shams because of a lack of economic substance. We again note, moreover, the regulated nature of the exchange upon which the trades in King were made. 87 T.C. at 1217. By contrast, the contracts in Glass were tailor-made between broker/dealer and taxpayer, not transacted through “open outcry” on the LME ring, and as the facts in Glass amply bear out, were deliberately prearranged.
We accordingly hold that it is appropriate before applying the per se rule of section 108(b) to enquire whether straddle transactions were fictitious, prearranged, or otherwise in violation of the rules of the exchange, and if so, whether there were losses actually incurred.6 Since the straddle transactions in Glass were prearranged, causing the transactions to lack economic substance, petitioner incurred no losses to which the per se rule can be applied. We therefore hold for respondent.
Because we hold for respondent on the above grounds, we need not address his other arguments.
An approriate order will be issued.
Reviewed by the Court.
Sterrett, Chabot, Parker, Kórner, Shields, Hamblen, Cohen, Clapp, SwiFT, Jacobs, Wright, Parr, Wells, and Whalen, JJ., agree with the majority opinion. GERBER and Ruwe, JJ., did not participate in the consideration of this case. APPENDIX A
Division A of the Deficit Reduction Act of 1984, Pub. L. 98-369, 98 Stat. 494, 630 (Section 108)
Sec. 108. TREATMENT OF CERTAIN LOSSES ON STRADDLES ENTERED INTO BEFORE EFFECTIVE DATE OF ECONOMIC RECOVERY TAX 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 such Act 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 to be part of a transaction entered into for profit.
(c) Net Loss Allowed Whether or Not Transaction Entered Into For Profit. — If any loss with respect to a position described in paragraphs (1) and (2) of subsection (a) is. not allowable as a deduction (after applying subsections (a) and (b)), such loss shall be allowed in determining the gain or loss from dispositions of other positions in the straddle to the extent required to accurately reflect the taxpayer’s net gain or loss from all positions in such straddle.
(d) Other Rules. — Except as otherwise provided in subsections (a) and (c) and in sections 1233 and 1234 of such Code, the determination of whether there is recognized gain or loss with respect to a position, and the amount and timing of such gain or loss, and the treatment of such gain or loss as long-term or short-term shall be made without regard to whether such position constitutes part of a straddle.
(e) Straddle. — For purposes of this section, the term “straddle” has the meaning given to such term by section 1092(c) of the Internal Revenue Code of 1954 as in effect on the day after the date of the enactment of the Economic Recovery Tax Act of 1981, and shall include a straddle all the positions of which are regulated futures contracts.
(f) Commodities Dealer. — For purposes of this section, the term “commodities dealer” has the meaning given to such term by section 1402(i)(2)(B) of the Internal Revenue Code of 1954 (as added by this subtitle).
(g) Regulated Futures Contracts. — For purposes of this section, the term “regulated futures contracts” has the meaning given to such term by section 1256(b) of the Internal Revenue Code of 1954 (as in effect before the date of enactment of this Act).
(h) Syndicates. — Subsection (b) shall not apply to any syndicate (as defined in section 1256(e)(3)(B) of the Internal Revenue Code of 1954).
Tax Reform Act of 1986, Pub. L. 99-514, 100 Stat. 2085, 2817 (Section 1808(d))
(d) Section 108. — Section 108 of the Tax Reform Act of 1984 is amended—
(1) by striking out “if such position is part of a transaction entered into for profit” and inserting in lieu thereof “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”,
(2) by striking out subsection (b) and inserting in lieu thereof the following:
“(b) Loss Incurred 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.”,
(3) by striking out the heading for subsection (c) and inserting in lieu thereof the following:
“(c) Net Loss Allowed. — ”,
(4) by striking out subsection (f) and inserting in lieu thereof the following:
“(f) Commodities Dealer. — For purposes of this section, the term ‘commodities dealer’ means any taxpayer who-
'll) at any time before January 1, 1982, was an individual described in section 1402(i)(2)(B) of the Internal Revenue Code of 1954 (as added by this subtitle), or
“(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
“(B) 1 or more members of the families (as so defined) of such individuals.”, and
(4) by striking out subsection (h) and inserting in lieu thereof the following:
“(h) Syndicates. — For purposes of this section, any loss incurred by a person (other than a commodities dealer) with respect to an interest in a syndicate (within the meaning of section 1256(e)(3)(B) of the Internal Revenue Code of 1954) shall not be considered to be a loss incurred in a trade or business.”