Beverly Gordon - Page 9

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          associated with any other property that he owned.  As the finder            
          of fact, when we issued our Opinion we were, and we are now,                
          unable to make any such findings based on the record presented to           
          us in these cases.  We found Mr. Gordon's testimony regarding his           
          alleged hedging activities to be general, vague, and conclusory             
          and found the entire record before us to be unclear about the               
          nature and extent of any such activities.  That is precisely why            
          we found that Mr. Gordon failed to establish that he held the               
          options that generated the 1986 net trading loss for the purposes           
          specified in section 1256(f)(3)(B), rather than finding that the            
          record established that he did not so hold those options.6                  
          However, as we stated in our Opinion, that finding "does not                
          necessarily mean that Mr. Gordon did not hold any of the options            
          that generated his 1986 net trading loss for the purposes speci-            
          fied in section 1256(f)(3)(B)."  Our review of the entire record            
          in these cases left a question in our mind about whether or not             
          Mr. Gordon was engaged in hedging activities during 1986 that fit           
          within section 1256(f)(3)(B).  That question was reinforced by              
          Mr. Gordon's claims in his trial memorandum as well as throughout           
          his opening and answering briefs that the 1986 net trading loss             

          6  Respondent also believed that the record relating to the                 
          nature and extent of Mr. Gordon's alleged hedging activities was            
          unclear.  Consequently, respondent argued on brief that we should           
          resolve the question presented to us under sec. 1256(f)(3)(B)               
          based on Mr. Gordon's failure to satisfy his burden of proof on             
          that issue.                                                                 

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