Cascade Designs, Inc. - Page 36




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          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.           






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