- 8 -
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.
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 Next
Last modified: May 25, 2011