Anthony J. Kadillak - Page 25

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               (1) The amount paid (if any) for such property, over,                  
               (2) The amount realized (if any) upon such forfeiture.                 
               If such property is a capital asset in the hands of the                
               taxpayer, such loss shall be a capital loss. * * * .                   
               Petitioner is not a securities dealer, and he held his Ariba           
          shares strictly as an investor.  Stock is a capital asset.  Sec.            
          1221(a)(1).  Thus, petitioner’s nonvested Ariba stock was a                 
          capital asset in his hands, and any loss realized upon its                  
          forfeiture is characterized as a capital loss.  See sec. 1.83-              
          2(a), Income Tax Regs.                                                      
               Furthermore, the phrase “amount paid” in section 1.83-                 
          2(a)(1), Income Tax Regs., refers “to the value of any money or             
          property paid for the transfer of property to which section 83              
          applies”.  Sec. 1.83-3(g), Income Tax Regs.  Therefore, pursuant            
          to sections 1.83-2(a) and 1.83-3(g), Income Tax Regs., a taxpayer           
          is barred from recognizing as a capital loss the previous amount            
          included as compensation when nonvested stock subject to a                  
          section 83(b) election is subsequently sold for less than its               
          FMV.  Theophilos v. Commissioner, 85 F.3d 440 (9th Cir. 1996),              
          revg. T.C. Memo. 1994-45.                                                   
               Petitioner paid Ariba $625 in 2000 to exercise the option to           
          acquire 6,667 shares of subsequently forfeited stock and elected            
          to recognize the excess of the FMV over the exercise price on the           
          date of exercise as compensation for AMT purposes.  Ariba paid              
          petitioner $625 to repurchase the 6,667 shares in 2001, causing             





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Last modified: May 25, 2011