William T. and Nicole L. Gladden - Page 15




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               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.                                                   


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