Beverly Gordon - Page 14

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          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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