- 25 - 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.Page: Previous 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 NextLast modified: November 10, 2007