- 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.Page: Previous 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 Next
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