James E. Zurcher - Page 5

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          the Property.  Petitioner supplied the C.P.A. with all relevant             
          information to prepare petitioner's return, and petitioner relied           
          on the C.P.A. to report the sale of the Property correctly.  The            
          C.P.A. advised petitioner that he was entitled to claim an                  
          ordinary loss on his sale of the Property.                                  
               Petitioner's 1992 Schedule C was the first Schedule C that             
          petitioner had filed with respect to the Property.  On his 1990             
          income tax return, petitioner deducted the Property's real estate           
          taxes on Schedule A, Itemized Deductions.                                   
               The notice of deficiency states that petitioner's $71,504              
          loss was a long-term capital loss.                                          
                                       OPINION                                        
               We must decide whether the Property was a capital asset in             
          petitioner's hands.  A "capital asset" includes all property held           
          by a taxpayer, with certain exceptions.  The parties focus on one           
          of these exceptions, namely, "property held by the taxpayer                 
          primarily for sale to customers in the ordinary course of his               
          trade or business".  Sec. 1221(1).  If the Property is within               
          this exception, petitioner's $71,504 loss is deductible in full.            
          See sec. 165(a), (c)(1).  If the Property is not within this                
          exception, petitioner's recognizable loss for 1992 with respect             
          to the Property (and other capital assets) is allowable only to             
          the extent of any gains from the sale or exchange of capital                
          assets plus (if the capital loss exceeds gains) the lesser of               






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