Jean-Remy Facq and Jennifer Huff-Facq - Page 16

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          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.           





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