- 22 - 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.Page: Previous 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Next
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