Farmland Industries, Inc. - Page 93




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             losses exceed the gains for the taxable year, then all of                
             the gains and losses are treated as ordinary gains and                   
             losses.  See sec. 1231(a)(2).  Respondent argues that any                
             gain or loss that is treated as a capital gain or loss                   
             under section 1231 should be classified as from                          
             nonpatronage sources.                                                    
                  As a threshold matter, respondent’s argument does not               
             satisfactorily explain why assets that qualify as property               
             used in the trade or business under section 1231(b) are                  
             subject to a per se rule under section 1.1382-3(c)(2),                   
             Income Tax Regs., which is formulated in terms of “income                
             derived * * * from sale or exchange of capital assets”.                  
             Assets treated as “property used in the trade or business”,              
             as defined by section 1231(b), are excluded from the                     
             definition of the term “capital asset”.  Sec. 1221(2).                   
             See St. Louis Bank for Coops. v. United States, 624 F.2d                 
             at 1053, where the Court rejects the Commissioner’s                      
             classification of gain from the sale of a car as                         
             nonpatronage income under section 1.1382-3(c)(2), Income                 
             Tax Regs., and points out that the Commissioner’s treatment              
             was erroneous “since the car was not a capital asset under               
             section 1221 of the Code.”                                               
                  Respondent’s position is that, if the section 1231                  
             gains and section 1231 losses for the taxable year are                   






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Last modified: May 25, 2011