Edward and Ruth Kelly - Page 28

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            Douglas v. Commissioner, 86 T.C. at 763; cf. Perry v.                                         
            Commissioner, T.C. Memo. 1992-258.                                                            
                  Mrs. Kelly conceded that the options trading losses reported                            
            on the joint returns were real.  She contended, however, that the                             
            deductions were "phony" because they were based on "outright                                  
            deception, followed by obfuscation":  That in support of the                                  
            deductions for 1986 and 1987, on Schedule C Mr. Kelly                                         
            fraudulently represented that he was an options dealer, and that                              
            in support of the deductions for 1989 and 1990, he deliberately                               
            omitted to report the nature of his business on Schedule C in                                 
            order not to jeopardize the deductions.                                                       
                  There are a number of serious weaknesses in this argument.                              
            First, the argument applies only to the first 4 of the years at                               
            issue.  There is no suggestion of deliberate misrepresentation in                             
            the reporting of Mr. Kelly's losses for 1991 and 1992.                                        
                  Second, the argument fails to take account of the fact that                             
            on the joint returns for the 3 years preceding the first year in                              
            which Mr. Kelly adopted ordinary treatment for his options                                    
            trading losses, he consistently reported his business as                                      
            "dealer".  Yet he did not use this status to claim any tax                                    
            benefits for these years.  The inference that for 1986 and 1987                               
            he misrepresented the nature of his business with fraudulent                                  
            intent is therefore not compelling.                                                           







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