Stephen S. Wang, Jr. - Page 22

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          use of the information by others were all illegal acts.  Although           
          Mr. Lee did not place any restrictions on use of the funds paid             
          to petitioner, under securities laws petitioner did not have a              
          claim of right or the appearance of an unrestricted right to the            
          money.  He had then knowingly committed a crime, and he was                 
          subject to criminal penalties and to the SEC’s remedy of                    
          disgorgement.8  In 1988, petitioner’s disgorged profits were                
          placed in a receivership fund to be used as restitution for                 
          investors who could show a loss due to petitioner’s and/or Mr.              
          Lee’s illegal actions.  Under these circumstances, we hold that             
          petitioner does not pass the section 1341(a)(1) requirement and             
          that he is not entitled to section 1341 relief.                             
               Petitioner argued that his circumstances were similar to               
          those of Barrett v. Commissioner, 96 T.C. 713 (1991).  In that              
          case the taxpayer, a shareholder in a stock brokerage, purchased            
          stock options on the basis of insider information and realized              
          gain from the sale of the options.  Although the taxpayer was not           
          criminally prosecuted, he was sued by the option brokers with               
          whom he had made the trades and profit due to insider                       
          information.  In a year subsequent to the option transactions,              

               8 Disgorgement is used as a deterrent and is intended to               
          make the improper use of security information unprofitable.                 
          Hateley v. SEC, 8 F.3d 653, 655 (9th Cir. 1993); SEC v. Rind, 991           
          F.2d 1486, 1490 (9th Cir. 1993); SEC v. Wang, 944 F.2d 80, 85 (2d           
          Cir. 1991).  The amount disgorged must be reasonable; i.e.,                 
          approximately equal to the violator’s profits.  Hateley v. SEC,             
          supra at 656.                                                               




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