Brian L. and Carole J. Nahey - Page 12

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          gain treatment because no sale or exchange occurred.  In reaching           
          our conclusion, we quoted from the opinion of the Court of Appeals          
          for the District of Columbia in Hale v. Helvering, supra (relating          
          to the compromise of a note for less than face value):                      
               There was no acquisition of property by the debtor, no                 
               transfer of property to him.  Neither business men nor                 
               lawyers call the compromise of a note a sale to the                    
               maker.  In point of law and in legal parlance property in              
               the notes as capital assets was extinguished, not sold.                
               In business parlance the transaction was a settlement and              
               the notes were turned over to the maker, not sold to him.              
               * * *                                                                  
          Fahey v. Commissioner, supra at 109.2                                       
               In Hudson v. Commissioner, supra, the taxpayers purchased a            
          50-percent interest in a judgment from the legatees of an estate,           
          and subsequently the taxpayers settled the judgment with the                
          debtor.  The taxpayers reported the payment of the judgment as              
          capital gain.  We held that the payment should be characterized as          
          ordinary income, explaining:                                                
                    We cannot see how there was a transfer of property,               
               or how the judgment debtor acquired property as the                    
               result of the transaction wherein the judgment was                     
               settled.  The most that can be said is that the judgment               
               debtor paid a debt or extinguished a claim so as to                    
               preclude the execution on the judgment outstanding                     

               2    Our reasoning in Fahey v. Commissioner, 16 T.C. 105               
          (1951), was followed by the Court of Appeals for the Fifth                  
          Circuit in Pounds v. United States, 372 F.2d 342, 349 (5th Cir.             
          1967), a case relied on by petitioners in support of their                  
          argument that the Xerox lawsuit was a capital asset.  The Pounds            
          court found that no sale or exchange occurred on the payment of a           
          12-1/2 percent profit interest in a land deal because following             
          the transaction only one party, the taxpayer, received property             
          (the cash payment).                                                         




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