Gary K. Bielfeldt and Carlotta J. Bielfeldt - Page 24

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          1029 (4th Cir. 1986); Van Suetendael v. Commissioner, 152 F.2d              
          654, 654 (2d Cir. 1945), affg. per curiam a Memorandum Opinion of           
          this Court dated Sept. 25, 1944; King v. Commissioner, 89 T.C.              
          445, 458 (1987); see Wood v. Commissioner, 16 T.C. 213, 225-226             
          (1951) ("It is well settled that property cannot be classified as           
          stock in trade or property subject to inventory unless it is held           
          by the taxpayer primarily for sale to customers in the ordinary             
          course of his trade or business."); see also Kelly v.                       
          Commissioner, T.C. Memo. 1996-529; Tybus v. Commissioner,                   
          T.C. Memo. 1989-309.  The mere fact that petitioner may have sold           
          the Treasury securities in the ordinary course of his trade or              
          business, an assertion that petitioner vigorously makes but which           
          we decline to decide, does not mean, as petitioner asks us to               
          hold, that the securities are outside the meaning of the term               
          "capital asset" as used in section 1221.  In order to escape the            
          broad reach of that term, and the resulting classification as a             
          capital gain or capital loss, petitioner's sales not only must              
          have been "in the ordinary course of his trade or business", but            
          must have been "to customers" as well.12  In fact, the phrase "to           
          customers" was expressly added to the predecessor of section                

               12 Petitioner, citing Corn Prods. Ref. Co. v. Commissioner,            
          350 U.S. 46 (1955), argues on brief that the term "capital asset"           
          is narrowly defined for purposes of sec. 1221.  We disagree.  In            
          Arkansas Best Corp. v. Commissioner, 485 U.S. 212, 222 (1988),              
          the Supreme Court clarified that the term "capital asset" is                
          construed broadly, and that "Corn Products * * * [stands] for the           
          narrow proposition that hedging transactions that are an integral           
          part of a business' inventory-purchase system fall within the               
          inventory exclusion of � 1221."                                             


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