- 45 - business and whether petitioner held the club memberships for sale to customers in the ordinary course of that trade or business. See Bramblett v. Commissioner, 960 F.2d 526 (5th Cir. 1992); Buono v. Commissioner, 74 T.C. at 205. Petitioners survey the factors used by courts to distinguish between dealers and investors in real estate and conclude that "clearly, Lemons' activities do rise to the level of a trade or business." In analyzing these factors, petitioners take into account all of the activities of the joint venture in developing, improving, and selling the property. Respondent, on the other hand, applies the same factors and concludes that petitioner was not engaged in a trade or business. In coming to this conclusion, respondent draws a sharp distinction between petitioner and the joint venture and takes into account only petitioner's individual actions with respect to the club memberships but not his actions with respect to any other aspect of the development of the Moonlight Beach property. The premise of respondent's argument appears to be that in evaluating whether petitioner was engaged in a trade or business for the purpose of applying section 1221(1) the Court should look only to the activities petitioner undertook after he acquired the club membershipsPage: Previous 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 Next
Last modified: May 25, 2011