Stephen S. Wang, Jr. - Page 23

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          the taxpayer settled the civil suit by disgorging to the option             
          brokers part of his profit from the sale of the options.  In                
          Barrett, the taxpayer was allowed to use section 1341 after the             
          Court found “that the taxpayer did not have an unrestricted                 
          right” to the profits, or in other words, “that the taxpayer had            
          a legal obligation to restore the item.”  Id. at 718-719.                   
               Although Barrett is factually similar to the case under                
          consideration, the holding in that case concerned section                   
          1341(a)(2).  The Court in Barrett, however, did not consider                
          whether there was a claim of right or the appearance of                     
          unrestricted right to income from option purchases.  The focus in           
          Barrett was whether the repayment was due to a restriction on the           
          taxpayer; i.e., whether the taxpayer had an obligation to pay the           
          option brokers who had sued him.  Because of our holding that               
          petitioner did not meet the first prong of the section 1341                 
          requirements, we need not consider whether petitioner met the               
          other requirements of section 1341.                                         
               Accordingly, petitioner does not qualify for section 1341              
          treatment with respect to the disgorgement payment.                         
          Additions to Tax for Fraud Under Section 6653                               
               The next issue for our consideration is whether petitioner             
          is liable for additions to tax for fraud under section                      
          6653(b)(1)(A) and (B) or, in the alternative, for negligence                







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