Frank Chen - Page 10

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          at 1043.  Petitioner’s problem is that he fails to satisfy the              
          second, equally important requirement for trader status, that his           
          purchases and sales of securities be “frequent, regular, and                
          continuous”.  See Boatner v. Commissioner, supra.                           
               Because 303, or approximately 94 percent, of the 323                   
          transactions in which petitioner either purchased or sold                   
          securities during 1999 occurred in the February to April                    
          timeframe, with the balance occurring in January, May, and July             
          and no trades occurring in any of the other 6 months,                       
          petitioner’s 1999 trading activity reasonably qualified as                  
          “frequent, regular, and continuous” only during February, March,            
          and April.5  Moreover, throughout 1999, petitioner maintained a             
          full-time job as a computer chip engineer.                                  
               In the cases in which taxpayers have been held to be traders           
          in securities, the number and frequency of transactions indicated           
          that they were engaged in market transactions almost daily for a            
          substantial and continuous period, generally exceeding a single             
          taxable year; and those activities constituted the taxpayers’               
          sole or primary income-producing activity.  See Levin v. United             

               5  In his purported election of the mark-to-market                     
          accounting method, petitioner represents that he became a “daily            
          trader” as of Jan. 1, 1999.  Moreover, his 2000 and 2001 returns            
          report his gains and losses from purchases and sales of                     
          securities on Schedule D, Capital Gains and Losses, not on                  
          Schedule C, Profit or Loss From Business.  Thus, the evidence               
          indicates that petitioner’s daily trading activities occurred               
          only during the 3 months of February, March, and April 1999.                





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