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$3,000 a year or the excess of loss over the gains. Sec. 1211(b).
Whether the Property is a capital asset or was instead held
primarily for sale in the ordinary course of petitioner's
business is a factual determination. Kelley v. Commissioner,
281 F.2d 527 (9th Cir. 1960), affg. T.C. Memo. 1959-63;
Daugherty v. Commissioner, 78 T.C. 623, 628 (1982). Courts have
developed the following nonexclusive factors to assist in this
determination: (1) The nature of the taxpayer's business;
(2) the taxpayer's purpose in acquiring and holding the property;
(3) subdivision, platting, and other improvements tending to make
the property more marketable; (4) the frequency, number, and
continuity of sales; (5) the extent to which the taxpayer engaged
in the sales activity; (6) the length of time the property was
held; (7) the substantiality of income derived from the sales,
and what percentage the income was of the taxpayer's total
income; (8) the extent of advertising and other promotional
activities; and (9) whether the property was listed directly or
through brokers. Parkside, Inc. v. Commissioner, 571 F.2d 1092,
1096 (9th Cir. 1977), revg. on other grounds T.C. Memo. 1975-014;
Estate of Segel v. Commissioner, 370 F.2d 107, 108 (2d Cir.
1966), affg. T.C. Memo. 1965-221; Howell v. Commissioner, 57 T.C.
546, 554 (1972).
Although the above-described factors assist in our
determination, we must consider all of the facts and
circumstances; no individual factor or set of factors is
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