Edward and Ruth Kelly - Page 8

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            Court's finding that Mr. Auerbach and petitioner accepted the                             
            accuracy of Mr. Kelly's representation that registration as an                            
            options principal qualified Mr. Kelly to do business as an                                
            options dealer and that the representation did not constitute                             
            such a substantial deviation from ordinary behavior that it could                         
            not be ascribed to an honest misunderstanding or simple                                   
            carelessness.  Thus the evidence neither showed the                                       
            representation to be phony or fraudulent nor foreclosed the                               
            possibility that the inaccuracy of the representation was due to                          
            negligence on Mr. Kelly's part.                                                           
                  Petitioner also claims, as she did on brief, that the record                        
            showed that Mr. Auerbach did not advise Mr. Kelly that he had a                           
            legitimate basis for ordinary loss treatment, but told him that                           
            his license could serve as a pretext for such a claim.                                    
            Petitioner claimed that Mr. Kelly and Mr. Auerbach well knew that                         
            Mr. Kelly was not in the business of dealing in options.                                  
                  There is nothing in the record to support these claims.  To                         
            the contrary, Mr. Auerbach testified that he told Mr. Kelly that,                         
            based on the information that he had, he believed that Mr. Kelly                          
            was entitled to consider himself in the business of being a                               
            dealer and that, after reviewing the position, Mr. Auerbach was                           
            comfortable with Mr. Kelly's claiming ordinary losses on his                              
            returns.                                                                                  







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