-16- 345 F. Supp. 2d at 1046. In particular, the District Court for the Western District of Washington decided this same issue with respect to Mr. Facq’s refund action for 1999. Facq v. United States, supra. We agree with the analyses of the three factors10 and the holdings in these opinions and find that Mr. Facq’s transaction was not in substance the same as the grant of an option. We now analyze the three factors. First, the type of property involved is publicly traded shares of stock. Mr. Facq had title to the shares (subject to the interest of Hambrecht and Quist because the shares were in the margin account), and had the right to receive dividends, to vote the shares, and to pledge the shares. In fact, Mr. Facq did pledge the shares to Hambrecht and Quist as collateral for the margin loans. This factor weighs against finding that the transaction is, in substance, similar to the grant of an option. See Hilen v. Commissioner, supra; Palahnuk v. United States, supra; Miller v. United States, supra at 1050-1051. We next consider whether the risk that the property will decline in value has been transferred. Sec. 1.83-3(a)(2), Income Tax Regs. Petitioners argue that we should concentrate on whether Mr. Facq was personally liable for the margin loans. They argue that he was not because Hambrecht and Quist required 10The factors to be considered include the type of property involved, the extent to which the risk that the property will decline in value has been transferred and the likelihood the purchase price will be paid. Sec. 1.83-3(a)(2), Income Tax Regs.Page: Previous 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Next
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