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issue was ordinary and not capital because he held the real
estate primarily for sale to customers in the ordinary course of
business. Sec. 1221(1); Suburban Realty Co. v. United States,
615 F.2d 171, 174 (5th Cir. 1980); Biedenharn Realty Co. v.
United States, 526 F.2d 409, 415 (5th Cir. 1976).
Section 1221(1) excludes from capital asset classification--
stock in trade of the taxpayer or other property of a
kind which would properly be included in the inventory
of the taxpayer if on hand at the close of the taxable
year, or property held by the taxpayer primarily for
sale to customers in the ordinary course of his trade
or business * * *
The function of section 1221(1) is "to differentiate between
'profits and losses arising from the everyday operation of a
business' * * * and 'the realization of appreciation in value
accrued over a substantial period of time'". Malat v. Riddell,
383 U.S. 569, 572 (1966). "Primarily" means "principally" or "of
first importance". Malat v. Riddell, supra.
Whether property is held by a taxpayer "primarily for sale
to customers in the ordinary course of * * * business" is a
question of fact. S & H, Inc. v. Commissioner, 78 T.C. 234, 242
(1982). Courts consider numerous factors in deciding this issue,
and no one factor is controlling. Biedenharn Realty Co. v.
United States, supra at 415. Petitioner bears the burden of
proving that his property was not so held. Rule 142(a); Welch v.
Helvering, 290 U.S. 111, 115 (1933).
The following factors indicate that petitioner husband held
the houses primarily for sale to customers in the ordinary course
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