RACMP Enterprises, Inc. - Page 59




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          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 the           




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