1990. Because APECO had no accumulated earnings and profits, the distribution was treated as a nontaxable return of capital. Petitioners urge a number of points in an effort to distinguish the instant case from the cases relied on by respondent. We have considered each of petitioners' contentions and discuss certain of them below. Petitioners' first contention is that no negotiations for the sale of the horses were undertaken prior to their transfer to APECO. We, however, are not persuaded that the absence of prearrangement dictates the result in the instant case. Although prearrangement of the sale of transferred property is cogent evidence that the transferee passing title is a conduit and is not in substance the seller of property, Palmer v. Commissioner, 44 T.C. at 94-96; Abbott v. Commissioner, T.C. Memo. 1964-65, affd. per curiam 342 F.2d 997 (5th Cir. 1965), where property is readily marketable, and prior arrangements are therefore superfluous, the absence of prearrangement is not decisive, Hallowell v. Commissioner, supra at 608. In the instant case, the horses that were sold at auction during 19897 were readily marketable. Moreover, it is customary for horses of the quality of those transferred by Mr. Kluener to be sold at open auction, and very unusual for a sale to be made privately. Consequently, we conclude that the absence of prearrangement is not decisive of the issue at hand. Id. 7 Inasmuch as it is the gain realized from the sale of 37 horses at auction during 1989 that has given rise to the present controversy, we need not consider whether the four remaining horses that were not disposed of in that manner were readily marketable.Page: Previous 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 Next
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