Richard L. Matz and Linda A. Matz, Deceased, Richard Lee Matz, Jr., Independent Executor - Page 14

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            petitioner's ventures did not reach the requisite level of                                  
            activity, as interpreted by the Court of Appeals for the Fifth                              
            Circuit, to be considered engaged in a trade or business.  Cf.                              
            Suburban Realty Co. v. United States, supra at 174 (taxpayer made                           
            244 sales over a 32-year period); Biedenharn Realty Co. v. United                           
            States, supra at 411-412 (taxpayer sold 208 lots and 12                                     
            individual parcels from subdivision in question over 31-year                                
            period); United States v. Winthrop, supra at 907 (taxpayer sold                             
            456 lots over a 19-year period).                                                            
                  Petitioner testified that since he went into real estate, in                          
            approximately 1960, he had bought and sold approximately 45                                 
            unimproved properties and 186 improved properties.  Petitioners                             
            assert that this supports the proposition that petitioner had                               
            frequent and substantial sales of real property over his entire                             
            business career.  We disagree.                                                              
                  Petitioners attached to their brief three appendices listing                          
            the above referenced unimproved and improved properties.                                    
            Respondent attached to the reply brief petitioners' answers to                              
            respondent's interrogatories in order to refute the appendices.                             
            Statements in briefs, however, do not constitute evidence and                               
            cannot be used as such to supplement the record.  Rule 143(b);                              
            Niedringhaus v. Commissioner, 99 T.C. 202, 214 n.7 (1992).  After                           


                  6     We note that two of these 18, about which petitioner                            
            testified, are not improved properties, but failed startup                                  
            businesses.                                                                                 




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