Franklin W. Briggs - Page 30




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              On July 16, 1988, Daniell ended his business relationship               
         with Briggs and Mr. Morris by selling them his undivided interest            
         in the joint venture.                                                        
              On their 1986 individual Federal income tax returns, Briggs             
         and the Morrises each reported the sales of their one-third                  
         interests in the 40 acres as long-term capital gains.22                      
         Respondent determined that the gain was ordinary income.                     
         Discussion                                                                   
              Petitioners argue that the 40 acres was a capital asset                 
         because it was “purchased for investment purposes in their                   
         individual names, and not in the joint venture’s name.”  They                
         argue that the 40 acres was not held or offered for sale in                  
         petitioners’ trade or business.  Respondent argues that the 40               
         acres was held by the joint venture as part of its trade or                  
         business of acquiring and developing real estate, and                        
         consequently was not a capital asset.                                        
              Section 1221 defines “capital asset” generally as any                   
         property held by a taxpayer, with certain exceptions, including              
         property held by the taxpayer primarily for sale to customers in             
         the ordinary course of his trade or business, and real property              
         used in the taxpayer’s trade or business.  See sec. 1221(1) and              


               22 On their respective Schedules D, Capital Gains and                  
          Losses, Briggs and the Morrises each reported a single sale of a            
          one-third interest in land, with a sale price of $363,333 and               
          basis of $209,980.                                                          





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