- 14 -
that section.9 Nor did she make any arguments on brief address-
ing the impact of section 1256(f)(3)(B) and Mr. Gordon's alleged
hedging activities on the resolution of the issue presented under
section 6013(e)(2)(B). Indeed, Ms. Gordon made no mention what-
soever on brief of section 1256(f)(3)(B).10 It was only after
Ms. Gordon reviewed our findings and conclusions with respect to
the section 6013(e)(2)(B) issue with which she was not satisfied
that she decided to advance for the first time in her motion for
reconsideration arguments relating to the effect of section
1256(f)(3)(B) and Mr. Gordon's alleged hedging activities on the
resolution of the issue presented under section 6013(e)(2)(B).
We find that the arguments that Ms. Gordon is advancing with
9 In fact, the only mention by Ms. Gordon on brief of Mr.
Gordon's claimed hedging activities is in Ms. Gordon's answering
brief where she objects to the following finding of fact proposed
by respondent: "Mr. Gordon alleges that 80% of his trades were
hedging transactions although he never identified any of his
trades as a hedging transaction." In objecting to that proposed
finding of respondent, Ms. Gordon states: "Petitioner objects to
this proposed finding to the extent it deals with Mr. Gordon's
'allegations' of hedging. Mr. Gordon's hedging activities, if
any, were related to protecting his option positions. Mr. Gordon
did use options to hedge other positions." We found Ms.
Gordon's statement in that objection about "Mr. Gordon's hedging
activities, if any," to be an acknowledgment by Ms. Gordon that
the record as it relates to Mr. Gordon's hedging activities was
not clear and required further development.
10 Nor did Ms. Gordon mention sec. 1256(f)(3)(A) on brief. As
we indicated in our Opinion, Ms. Gordon did not even argue on
brief that, on the record presented, that section, and not sec.
1256(a)(3), requires that the 1986 net trading loss be treated as
a loss from the sale or exchange of a capital asset.
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