Alan M. Resser and Melinda B. Resser - Page 21

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               Section 1.6661-3(a)(2), Income Tax Regs., provides that                
               the substantial authority standard is stricter than the                
               reasonable basis standard.  The regulation also states                 
               that a position with respect to the tax treatment of an                
               item that is "arguable but fairly unlikely to prevail                  
               in court would satisfy a reasonable basis standard, but                
               not the substantial authority standard."  In the                       
               instant case, petitioners rely heavily on Laureys v.                   
               Commissioner, [92 T.C. 101 (1989)], to support the                     
               position that [Mr. Resser's] trading was profit                        
               motivated.  Although we think [Mr. Resser's] position                  
               is arguable, the facts in Laureys are materially                       
               distinguishable from those of this case.  Therefore,                   
               [Mr. Resser's] position might arguably satisfy the                     
               reasonable basis standard but falls short of satisfying                
               the substantial authority standard. * * *  [Resser v.                  
               Commissioner, T.C. Memo. 1991-423.]                                    
          We disagree with respondent that this mandates a finding that               
          there was some basis in law for the account QRF loss deduction.             
          In Laureys v. Commissioner, 92 T.C. 101 (1989), there was no                
          direct evidence of tax planning or motivation on the part of the            
          taxpayer.  Our statement in Resser I indicates that Mr. Resser              
          relied on Laureys with respect to the account QRF losses because            
          the possibility of profit does exist in these types of                      
          transactions.  However, as we found in Resser I, Mr. Resser's               
          pattern of trading in account QRF clearly demonstrated his lack             
          of a profit motive.  Despite what respondent refers to as "the              
          economic viability and legality" of the option spread                       
          transactions at issue, Mr. Resser's account QRF transactions were           
          neither conceived nor executed with the dominant objective of               
          making a profit.  Mr. Resser, a sophisticated and experienced               
          trader, designed his trades to produce a loss.  He engaged in               






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