Lee B. Arberg and Melissa A. Quinn - Page 25




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          defense).  To summarize, then, the burden rests on petitioners to           
          establish facts to overcome the determinations made in the notice           
          of deficiency or to support any revised position raised during              
          the examination of their 2000 return.  Respondent, however, must            
          shoulder the burden of showing applicability of the duty of                 
          consistency to the extent that respondent seeks to rely on the              
          doctrine to prevent petitioners from taking a position contrary             
          to one maintained in a prior year.  See Janis v. Commissioner,              
          T.C. Memo. 2004-117 (noting the Commissioner’s burden of proof on           
          a duty of consistency defense), affd. 461 F.3d 1080 (9th Cir.               
          2006), affd. 469 F.3d 256 (2d Cir. 2006).                                   
          II.  Treatment of Securities Transactions                                   
               A.  Contentions of the Parties                                         
               Petitioners argue that gains and losses derived from                   
          transactions in the E Trade account are properly treated as                 
          ordinary, rather than capital, in nature.  Their position in this           
          regard rests on two principal contentions.  First, they assert              
          that the trades in the E Trade account are properly treated as              
          trades of Mr. Arberg, not Ms. Quinn.  As support for this claim             
          they look to an alleged power of attorney, to trust law in the              
          State of Georgia, and to what they characterize as the “legal               
          preclusion doctrine”.  Second, they maintain that Mr. Arberg                
          qualifies as a trader within the meaning of section 475.                    








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