- 15 - Neither party herein suggests that any of the above five statutory exceptions applies to the water rights in issue. Petitioners, in their briefs, note that if the water rights in issue were to be treated as “real property” used in the trade or business of the partnership's farming activity, and therefore as excluded from capital asset treatment under section 1221, gain realized on the sale of the water rights would, in any event, be treated as capital gain under section 1231. Neither party, however, pursues this possible treatment of the partnership's water rights as section 1231 “real property”. Thus, the only question before us is whether the partnership's water rights constitute “property” and capital assets under section 1221.2 1(...continued) (including the Congressional Record) which is received from the United States Government or any agency thereof, other than by purchase at the price at which it is offered for sale to the public, and which is held by-- (A) a taxpayer who so received such publication, or (B) a taxpayer in whose hands the basis of such publication is determined, for purposes of determining gain from a sale or exchange, in whole or in part by reference to the basis of such publication in the hands of a taxpayer described in subparagraph (A). 2 The fact that the water rights involved herein constitute surface water rights, rather than in situ water rights, may explain why petitioners do not argue that the water rights qualify as “real property” and therefore qualify for capital gain treatment under sec. 1231.Page: Previous 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Next
Last modified: May 25, 2011