Neal T. Baker Enterprises, Inc. - Page 18

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          held in petitioner's "trade or business."  See Black v.                     
          Commissioner, supra at 96 (Court rejected taxpayer's argument               
          that property acquired in a like-kind exchange but held primarily           
          for sale should come within section 1031 if the sale was not                
          within the taxpayer's ordinary course of business); Paullus v.              
          Commissioner, T.C. Memo. 1996-419.  As a result, the exclusion of           
          "property held primarily for sale" from nonrecognition treatment            
          in section 1031(a)(1) is broader than the exception to capital              
          gain treatment in section 1221(1).                                          
               Purpose For Which Beaumont Property Was Initially Acquired             
               Petitioner argues that its original intent in purchasing the           
          Beaumont Property was to construct duplex or four-plex rental               
          apartment units.  According to petitioner, its intent was to hold           
          such units for long-term investment.  Petitioner relies on Mr.              
          Baker's testimony regarding discussions with his broker Carl                
          Mellor about rezoning the property to multi-family use.                     
          We do not find Mr. Baker's statements regarding petitioner's                
          original intent persuasive.  In direct contrast with the                    
          assertion that petitioner intended to hold the property for                 
          construction of duplex or four-plex rental units, its purchase              
          was contingent upon the tentative subdivision map for the                   
          Beaumont Property being approved by the city of Beaumont.  This             
          tentative map proposed to subdivide the property into 48 lots for           







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