Bidyut K. Bhattacharyya and Diana T. Bhattacharyya - Page 25

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          upon the exercise of a stock option), the excess of the fair                
          market value of the property (stock) over the amount, if any,               
          paid for the property (the exercise price) shall be included in             
          the taxpayer’s gross income in the first year in which the                  
          taxpayer’s rights in the property are not subject to a                      
          substantial risk of forfeiture.  See Montgomery v. Commissioner,            
          127 T.C. 43, 53-54 (2006).                                                  
               Petitioners assert that, of the $746,191 in taxable income             
          reported on the Intel W-2, $606,963 is not included in gross                
          income.  Petitioners do not address this assertion in detail.               
          However, it appears that petitioners are arguing that the                   
          $606,963 should be treated as long-term capital gain, which could           
          be offset by long-term capital losses realized in 2000, and thus            
          would not be included in their gross income.  Petitioners’                  
          position is without merit.                                                  
               Petitioner exercised on January 11 and April 17, 2000,                 
          nonqualified stock options granted to him by Intel, resulting in            
          realized gains of $66,887 and $540,076, respectively (the spread            
          between the exercise price and the market price of the stock on             
          the dates of exercise).  This gain is not recognized as long-term           
          capital gain.  Instead, section 83(a) and section 1.83-1(a)(1),             
          Income Tax Regs., establish that such gain is ordinary income               
          included in petitioners’ gross income as compensation in 2000,              







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