Woody F. Lemons - Page 45

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             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 memberships              






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