Farmland Industries, Inc. - Page 86




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             transaction to the cooperative enterprise.  Respondent                   
             argues that section 1.1382-3(c)(2), Income Tax Regs.,                    
             establishes this per se nonpatronage rule for capital gains              
             and losses.  The regulation provides as follows:                         

                  (2) Definition.  As used in this paragraph, the                     
                  term “income derived from sources other than                        
                  patronage” means incidental income derived from                     
                  sources not directly related to the marketing,                      
                  purchasing, or service activities of the                            
                  cooperative association.  For example, income                       
                  derived from the lease of premises, from                            
                  investment in securities, or from the sale or                       
                  exchange of capital assets, constitutes income                      
                  derived from sources other than patronage.                          
                  [Sec. 1.1382-3(c)(2), Income Tax Regs.]                             

                  This regulation is expressly applicable only to exempt              
             farmers' cooperatives.  However, the concept “income                     
             derived from sources other than patronage”, is a concept                 
             applicable to both exempt and nonexempt cooperatives, and                
             the Courts have applied the regulation to nonexempt                      
             cooperatives as well as to exempt cooperatives.  See                     
             Buckeye Countrymark, Inc. v. Commissioner, 103 T.C. at                   
             547, 563 (1994); see also, e.g., CF Indus., Inc. v.                      
             Commissioner, 995 F.2d 101, 102 (7th Cir. 1993), modifying               
             and affg. T.C. Memo. 1991-568; Cotter & Co. v. United                    
             States, 765 F.2d 1102, 1106 (Fed. Cir. 1985); Certified                  
             Grocers, Ltd. v. Commissioner, 88 T.C. 238, 244 n.13                     
             (1987).  But see Gold Kist, Inc. v. Commissioner, 104 T.C.               






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