- 9 -
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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