Neal T. Baker Enterprises, Inc. - Page 15

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          property held for productive use in a trade or business or for              
          investment.6  However, the nonrecognition treatment of section              
          1031(a) does not apply to any exchange of "property held                    
          primarily for sale".  Sec. 1031(a)(2)(A).  The test of whether              
          property is held primarily for sale or for investment is applied            
          at the time of the exchange.  See Cottle v. Commissioner, 89 T.C.           
          467, 487 (1987).  Petitioner bears the burden of proving that it            
          had the requisite investment intent.  Click v. Commissioner, 78             
          T.C. 225, 231 (1982).                                                       
               Respondent argues that the transaction fails to qualify                
          under section 1031 because petitioner held the Exchange Property            
          primarily for sale.7  Petitioner argues that it held the Exchange           
          Property for investment.  Consequently, our focus is solely upon            
          the characterization of the Exchange Property.                              
               For purposes of section 1031, neither the Code nor the                 
          regulations define "held for investment."  The regulations                  
          provide that "[u]nproductive real estate held by one other than a           




               6  Sec. 1031(a)(1) provides:                                           
               In General--No gain or loss shall be recognized on the                 
               exchange of property held for productive use in a trade or             
               business or for investment if such property is exchanged               
               solely for property of like kind which is to be held either            
               for productive use in a trade or business or for investment.           
               7  Respondent has not challenged the applicability of sec.             
          1031 on any other ground.                                                   




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