Jeffrey Chou and Cindy Chou - Page 10




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               forfeiture” and rendered the stock non-transferable for                
               one year on its own terms, not because of Section 422.                 
               No such agreement exists in the present case.  When you                
               acquired the stock in early 2000 it was acquired                       
               without restriction.                                                   
               The provisions of IRC Section 422 impose no restriction                
               on the sale of stock.  They do provide favorable tax                   
               treatment if the stock is held for one year.  While                    
               this might have disadvantaged you for tax purposes had                 
               you sold the stock before holding it for a year, it in                 
               no way restricted your ability to sell or otherwise                    
               dispose of the stock at any point.                                     
               Your representative also argues that the Service has a                 
               “duty of consistency” which requires that it treat the                 
               options as subject to * * * [AMT] in 2001, not 2000.                   
               In support of that he cites Estate of Hilda Ashman,                    
               CA-9, * * * [2000-2] USTC 50,806.  In short, that case                 
               states that a taxpayer cannot take a position which is                 
               to his advantage in one year and then take an opposite                 
               position after that year is barred by the statute of                   
               limitations.  The statutes for both 2000 and 2001 are                  
               still open by virtue of your claim for refund.  In                     
               Orange Securities Corp., CA-5, 42-2 USTC 9735, the                     
               Court held that there is a “duty of consistency on both                
               the taxpayer and the Commissioner”.                                    
               You originally filed your 2000 return and reported the                 
               * * * [AMT] for that year.  The Service accepted that                  
               return.  When you filed amended returns for both 2000                  
               and 2001 to shift the * * * [AMT] to the later year the                
               Service accepted the amended return for 2001 but not                   
               the one for 2000.  Thus you found yourselves assessed                  
               very substantial * * * [AMT] for both years for the                    
               same underlying exercise of stock options.  Your                       
               representative argues that since the Service accepted                  
               the amended return for 2001 and assessed the * * *                     
               [AMT] shown thereon, it must–-to be consistent–-accept                 
               the amended return for 2000 and abate the AMT for that                 
               year.                                                                  
               The Service has not taken inconsistent positions.  It                  
               has consistently argued that the liability attaches to                 
               2000.  Further, the Service has taken the position that                
               the resolution of the inconsistency can be achieved by                 
               simply abating the AMT for 2001.  This is the position                 
               taken by the Revenue Agent in the examination of the                   






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Last modified: November 10, 2007