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(4) within a six-month period.” Gwozdzinsky v. Zell/Chilmark
Fund, L.P., 156 F.3d 305, 308 (2d Cir. 1998).
The parties disagree whether petitioner was an insider
subject to liability under section 16(b) of the Exchange Act
during 2000. Respondent points out that, after petitioner’s
resignation as an officer and director of MGC in 1999, petitioner
no longer filed Form 4, Statement of Changes in Beneficial
Ownership, or Form 5, Statement of Changes in Beneficial
Ownership of Securities, with the SEC, he was not a 10-percent
shareholder, and he apparently no longer considered himself an
insider subject to the reporting requirements of section 16(a) of
the Exchange Act. Respondent also points out that no lawsuit was
ever filed against petitioner seeking disgorgement of the profits
he realized when he sold MGC shares during 2000 and 2001.
Petitioner counters that he remained an insider at MGC during
2000 and 2001 as an adviser to MGC’s executives. Although we are
doubtful petitioner was an insider subject to liability under
section 16(b) of the Exchange Act during 2000, we need not decide
the point. Assuming arguendo that petitioner was an insider
within the meaning of section 16(b) of the Exchange Act, we
conclude that petitioner was not subject to a substantial risk of
forfeiture during the taxable year 2000 because he exercised his
ISOs and acquired shares of MGC stock at a point in time outside
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