Richard L. Hutcheson and Deloris A. Hutcheson - Page 9

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            without the consent of the other if sufficient grounds exist".                                
            Id. at 181-182.  As more fully set forth hereinafter, petitioner,                             
            on December 28, 1989, through Merrill Lynch, "reacquired" 96,600                              
            shares of WalMart stock.  Petitioners assert that their                                       
            "repurchase" of shares put them in all material respects in the                               
            same position they occupied in January 1989.  They contend that                               
            the "sufficient grounds" for rescission with Merrill Lynch are                                
            either mutual mistake or conversion.                                                          
                  Petitioner attempted to bring himself within the first                                  
            situation described in Rev. Rul. 80-58, supra, to reflect a                                   
            rescission to the extent of 96,600 of the 100,000 shares sold on                              
            January 3, 1989, by having Merrill Lynch purchase for him 96,600                              
            shares of WalMart on December 28, 1989.  He wanted Merrill Lynch                              
            to report to the IRS on Form 1099 a sale of only 3,400 shares for                             
            1989.  However, the record indicates that Merrill Lynch was                                   
            advised by tax experts not to change Form 1099 to reflect a                                   
            rescission, and was warned by the tax experts that it "could be                               
            subject to civil and possibly criminal sanctions by the IRS if it                             
            did so."  Nevertheless, Merrill Lynch agreed to help petitioner                               
            "repurchase" 96,600 shares in his attempt to claim the benefits                               
            of Rev. Rul. 80-58, supra, but made no representation as to what                              
            effect such "repurchase" might have.  In a letter to petitioner's                             
            lawyer, Merrill Lynch's counsel stated that it "is merely                                     
            treating this as a customer who is purchasing shares in his                                   
            account."  However, because it would be assisting in the                                      




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