- 59 - case law. After all, on numerous occasions this Court has been confronted with the question of whether realty was held for sale or investment. If real property is held primarily for sale in the ordinary course of a trade or business, gain from its sale is ordinary income as opposed to capital gain. See Eline Realty Co. v. Commissioner, 35 T.C. 1 (1960); Phillips v. Commissioner, 24 T.C. 435 (1955). In other words, taxpayers have been found to be in the business of selling houses. The costs of materials used in the construction of houses are not deductible expenses, but rather they are included in the basis of the home and give rise to ordinary income or capital gain upon sale. The present situation is analogous and should be accounted for in the same manner; i.e., petitioner should not be allowed to deduct expenses prior to reporting income. Thus, while it is true that real property is not considered merchandise or inventoriable in the same sense that personal property is, the method of accounting for the sale of real property, by way of analogy, reflects that the material and products remaining on hand or contained in work in progress should be considered inventory and/or their costs subtracted from petitioner’s cost of goods sold. Finally, the majority cites Levine v. State Bd. of Equalization, 299 P.2d 738 (Cal. App. 2d 1956), a sales tax case, to support its holding/finding that petitioner is a service business and the materials that go into making concrete structures are not merchandise. Although it is irrelevant to thePage: Previous 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 Next
Last modified: May 25, 2011