Lee B. Arberg and Melissa A. Quinn - Page 36




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          that funds came from Mr. Arberg’s work.  They made no explicit              
          claim regarding an exclusive source and certainly offered no                
          information as to the possibility of prior commingling, nor did             
          they discuss or address any other potentially relevant issues.              
               Lastly, with respect to their so-called legal preclusion               
          doctrine, petitioners have again failed to make a predicate                 
          factual showing.  See Commissioner v. First Sec. Bank of Utah,              
          N.A., 405 U.S. 394, 395, 403 (1972) (declining to permit                    
          allocation of income by the Commissioner under section 482 to a             
          taxpayer “that he did not receive and that he was prohibited from           
          receiving”).  Although petitioners state on brief that Ms. Quinn            
          was prohibited due to her employment from beneficially owning a             
          securities account or trading in securities for her own account,            
          they testified that she received permission from her supervisor             
          to establish the E Trade account.  They introduced no evidence or           
          testimony to delineate the parameters or conditions of any such             
          permission, so the Court is unable to evaluate limitations as to            
          this particular account.                                                    
               Accordingly, without even delving into the host of legal               
          strictures and requisites that would bear upon the applicability            
          of petitioners’ theories, the Court is satisfied that patent                
          deficiencies in the underlying factual record would short circuit           
          petitioners’ attempts to reach their desired result through these           
          avenues.  Therefore, the transactions in the E Trade account must           







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