- 36 - adoption of section 1235. The Commissioner concluded that consistent with the legislative history and section 1.1235-1(b), Income Tax Regs.: it is the position of the Service that where holders make transfers of patents that do not meet the requirements for capital gains treatment under section 1235 of the Code, the tax consequences of such transfers will be determined under other sections of the Code. * * * * * * * Therefore, the mere fact that a patent transfer by a holder for contingent amounts does not qualify for long-term capital gains treatment under section 1235 of the Code, will not prevent it from qualifying for such treatment under other provisions of the Code if it would qualify for such treatment in the absence of section 1235. * * * To the extent that the rationale of the court in the Poole case may be construed as contrary to the conclusion in this Revenue Ruling it will not be followed. Accordingly, the taxpayer in the instant case is entitled to treat the transfer of all substantial rights in the patent as the sale or exchange of a capital asset and the gain therefrom is reportable as long-term capital gain. [Rev. Rul. 69-482, 1969-2 C.B. at 164-165.] In previous cases concerning the income characterization of patent payments, the Commissioner has been consistent in adhering to its position in Rev. Rul. 69-482, 1969-2 C.B. 164. See, e.g., Omholt v. Commissioner, 60 T.C. 541, 547 n.7 (1973) (consistent with his position stated in Rev. Rul. 69-482, supra, the Commissioner made no argument that capital gain treatment is prohibited by section 1235; accordingly, the decision in this opinion was not made on that basis); Chu v. Commissioner, 58 T.C.Page: Previous 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 Next
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