- 81 - 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.Page: Previous 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 Next
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