Stephen S. Wang, Jr. - Page 11

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               The parties advanced several arguments, and the pivotal                
          question for each is whether petitioner was in a trade or                   
          business.  Although respondent determined that petitioner is                
          entitled to a deduction for the disgorgement, an NOL was                    
          disallowed because of the determination that petitioner’s                   
          activity was not a trade or business, a prerequisite here for a             
          carryback.4  In that context, we must decide whether petitioner             
          was in a separate trade and/or business of selling insider                  
          information or whether the expenses were connected with                     
          petitioner’s status as an employee.                                         
               Petitioner stipulated that he had unreported income of                 
          $154,0005 in 1987 from the sale of insider information.                     
          Petitioner contends that he is not liable for an income tax                 
          deficiency for 1987 because he sustained NOL’s for 1988 and 1989            
          that may be carried back to 1987.  In particular, petitioner                
          argues that he is entitled to deduct legal expenses in 1988 and             
          1989 and the disgorgement of his insider trading profits in 1988            
          as business expenses.  He contends that the legal fees and                  


               4 Respondent did not argue or determine that the deduction             
          for the disgorgement or the allowance of a net operating loss               
          (NOL) was against public policy.                                            
               5 In the deficiency notice, respondent determined unreported           
          income of $150,000.  Respondent did not seek to amend the answer,           
          but at trial and on brief sought an increased deficiency and                
          additions to tax.  Petitioner’s admission that he had unreported            
          income of $154,000 caused the issue to have been tried by consent           
          of the parties.  See Rule 41(b).                                            




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