- 23 - 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 negligencePage: Previous 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Next
Last modified: May 25, 2011