Thomas B. Drummond - Page 24

                                       - 24 -                                         
          Gain from the Sale of                                                       
          the Drawing in Question                                                     
                                                                                     
               The parties agree that petitioner purchased the drawing in             
          question during the 1970's for $1,300, sold it during 1989 for              
          $115,000, and realized a gain of $113,700 from that sale.  The              
          dispute here is whether that gain should be characterized as                
          ordinary income, as petitioner contends, or as long-term capital            
          gain, as respondent contends.  The parties agree that if the                
          Court were to determine that that gain is long-term capital gain,           
          petitioner would not be entitled to deduct any amount for his               
          contribution to the SEP for 1989 and that he would be liable for            
          the excise tax imposed by section 4972(a) as determined by                  
          respondent.17  The parties further agree that the resolution of             
          the dispute over the character of the gain from the sale of the             
          drawing in question depends on whether that drawing is "property            
          held by * * * [petitioner] primarily for sale to customers in the           
          ordinary course of his trade or business" within the meaning of             
          section 1221(1).  If it is, the gain at issue is ordinary income,           
          and not capital gain.                                                       
               The purpose of section 1221(1) is to "differentiate between            
          the 'profits and losses arising from the everyday operation of a            
          business' * * * and 'the realization of appreciation in value               


          17  Petitioner does not dispute that if the Court were to                   
          determine that that gain is ordinary income, he would nonetheless           
          be liable for the excise tax imposed by sec. 4972(a), but in a              
          lesser amount than that determined by respondent.  See supra note           
          16.                                                                         



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