Alan M. Resser and Melinda B. Resser - Page 17

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          deduction lacked a basis in law.  Mrs. Resser bears the burden to           
          prove that the loss deduction had no basis in law at the time               
          petitioners filed their 1982 Federal income tax return.  Rule               
          142(a); Busse v. United States, 542 F.2d 421, 425 (7th Cir.                 
          1976).                                                                      
               Mrs. Resser relies on our holding in Resser I to prove that            
          Mr. Resser's stock option spread losses are grossly erroneous               
          items.  Specifically, she argues that, because we found "pursuant           
          to well settled legal principles" that Mr. Resser's stock option            
          trades were "not engaged primarily for profit", there was no                
          legal basis for deducting the account QRF losses.                           
               Respondent's principal contention is that, because the                 
          trades were legitimate, i.e., the trades were executed on a                 
          regulated exchange and entered into using the open outcry auction           
          method during the regular trading period on the exchange, and, as           
          recognized by the Court in Resser I,8 the potential for both                

               8 In Resser I, we stated:                                              
                    It is uncontested that the potential for                          
                    profit exists in stock option spread                              
                    transactions like those engaged in by                             
                    petitioner, as does the potential for                             
                    economic loss.  However, the fact that there                      
                    is a reasonable expectation of profit is not                      
                    determinative.  Ewing v. Commissioner, [91                        
                    T.C. 396,] 416.  The relevant test is whether                     
                    petitioner's primary purpose for entering                         
                    stock option spread transactions was for                          
                    profit.  We agree with respondent that the                        
                    TDY trades at issue were not primarily profit                     
                                                             (continued...)           





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