Dan B. Isaac - Page 7




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          $11,637.50; there was, therefore, a short-term capital gain of              
          $3,736.50.  With respect to the May 16, 1997, sale, this stock              
          was purchased on January 28, 1997, for $15,287 and sold for                 
          $15,424, resulting in a short term capital gain of $137.  With              
          regard to the September 19, 1997, sale, petitioner owned no                 
          shares of IBM stock and this must have been a short sale that was           
          covered on September 26, 1997 (200 shares for $20,500) and on               
          October 28, 1997 (400 shares for $38,975) with income realized in           
          the amount of $548 ($59,923 - ($20,500 + $38,875)).  To the                 
          extent, however, that any of these transactions were included in            
          paragraph 10 of the Stipulation of Facts and are inconsistent               
          with that stipulation, the stipulation will control in the Rule             
          155 computation.                                                            
          2.  Other Issues                                                            
               Initially, we observe that petitioner has the burden of                
          proof.4  When this case was called from the calendar on February            
          4, 2002, there had been no meaningful communication with                    
          respondent’s counsel.  Petitioner was instructed to get his                 
          records and meet with counsel for respondent that day.                      
          Petitioner did obtain some records and met with counsel.  The               
          case was recalled on February 5, 2002, and set for trial 8 days             



          4  Sec. 7491(a)(1) places the burden of proof on respondent in              
          certain cases.  Petitioner, however, has not satisfied the                  
          requirements of sec. 7491(a)(2).  Accordingly, sec. 7491(a)(1)              
          has no bearing on the resolution of this case.                              





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