-17- Mr. Facq to keep a certain value in the margin account, and if the value of the shares declined below that specified value, Mr. Facq would have to deposit additional assets or the shares would be sold.11 We disagree with petitioner’s interpretation of the risk transfer factor. The proper inquiry is not whether the taxpayer was personally liable, but whether the risk of a decline in value of the shares was transferred from the employer. Palahnuk v. United States, 70 Fed. Cl. at 93. When InfoSpace transferred the shares, it no longer bore the risk of a decline in value. Either Hambrecht and Quist or Mr. Facq bore that risk. We need not determine whether it was Hambrecht and Quist or Mr. Facq; either way, InfoSpace no longer had the risk.12 Palahnuk v. United States, supra; Facq v. United States, supra. Accordingly, this factor weighs against finding that the substance of the transaction was the same as the grant of an option. Palahnuk v. United States, supra. 11Petitioners also encourage us to consider sec. 465 in determining whether Mr. Facq was personally liable to Hambrecht and Quist for the margin loan. We decline to consider sec. 465 in this context because that section pertains to deductions. Facq v. United States, 363 F. Supp. 2d 1288, 1290-1291 (W.D. Wa. 2005); United States v. Tuff, 359 F. Supp. 2d 1129, 1135-1136 (W.D. Wa. 2005); Miller v. United States, 345 F. Supp. 2d 1046, 1051 (N.D. Cal. 2004). 12We note that Mr. Facq did bear some risk that the value of the InfoSpace shares would decline. If the balance in his margin account declined, Mr. Facq would have to take steps to retain his shares. He would have to deposit additional assets or the stock would be sold. These facts indicate that Mr. Facq bore some risk that the value of the stock would decline. See Hilen v. Commissioner, T.C. Memo. 2005-226; Facq v. United States, supra; Miller v. United States, supra.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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