Stephen and Jane Marrin - Page 17

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                              Other factors confirm that petitioner was not a dealer in                                                                                   
                    the years at issue.  Besides customers, petitioner also lacked an                                                                                     
                    established place of business and licensing as a dealer.  He did                                                                                      
                    not hold himself out as a dealer or otherwise advertise such                                                                                          
                    status.2  For nearly half of 1989 and all of 1990, petitioner was                                                                                     
                    a full-time employee elsewhere.                                                                                                                       
                              The tenuous nature of petitioner's claim of dealer status is                                                                                
                    reflected by the inconsistencies in his position.  He commenced                                                                                       
                    using the "on the book" method of bid and asked, his principal                                                                                        
                    grounds for claiming to be a dealer, sometime in 1988.  Yet on                                                                                        
                    his 1988 return, he treated all losses from his securities                                                                                            
                    transactions--which were sizable, exceeding $96,000--as capital                                                                                       
                    losses, reporting them on a Schedule D.  In 1989 and 1990, he                                                                                         
                    continued using the "on the book" method and treated the                                                                                              
                    substantial losses therefrom3 as ordinary losses in each year on                                                                                      
                    a Schedule C, claiming to be a securities dealer.  During 1991,                                                                                       
                    petitioner continued using the method, but ceased buying and                                                                                          

                              2After first stipulating that he did not advertise as a                                                                                     
                    dealer, petitioner claimed at trial that his offers to buy and                                                                                        
                    sell, when they were the best price for a security and therefore                                                                                      
                    displayed on an exchange, constituted advertising.                                                                                                    
                              3In 1989, petitioner claimed losses from transactions in                                                                                    
                    stock options and stocks of $106,503 and from futures contracts                                                                                       
                    of $117,852, for a total of $224,355 claimed on the Sched. C for                                                                                      
                    that year.  (The losses from futures contracts are discussed                                                                                          
                    infra.)  These losses resulted in an $80,067 loss carryforward,                                                                                       
                    which was claimed on Sched. C of the 1990 return, together with                                                                                       
                    1990 securities losses of $18,311, for a total of $98,378 of                                                                                          
                    Sched. C losses claimed in 1990.                                                                                                                      




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