- 88 - 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 arePage: Previous 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 Next
Last modified: May 25, 2011