- 27 - deductible. It is not clear, however, whether this mistake was based on an erroneous conclusion of fact or law. For example, if the Conti transactions never took place, i.e., they were "factual shams", it is arguable the mistake was predicated on an erroneous factual conclusion. On the other hand, if the transactions did take place but would not be recognized because they were not entered into primarily for profit, the mistake was not one of fact, but of the legal consequences of the facts. See, e.g., Freytag v. Commissioner, 904 F.2d 1011 (5th Cir. 1990), affd. on other issues 501 U.S. 868 (1991), affg. 89 T.C. 849 (1987); Goldstein v. Commissioner, 364 F.2d 734 (2d Cir. 1966), affg. 44 T.C. 284 (1965). With the records that we have, petitioners concede that the Conti transactions "have no effect for tax purposes, and Petitioners will not recognize any gains, losses, income or expenses arising from transactions in non-regulated government securities traded by Conti". But, we do not know the basis of this concession. Petitioners have consistently maintained that a great number of the Conti transactions actually took place. Further, while petitioners' cases in the Multi-District Litigation involving Conti were settled, the court there found that petitioners could not identify so-called bad or sham transactions. In re ContiCommodity Services, Inc. Securities Lit., 733 F. Supp. 1555, 1564 (N.D. Ill. 1990), revd. on otherPage: Previous 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 Next
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