D. G. Smalley and Nell R. Smalley - Page 22





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               In arguing that the properties are of like kind, petitioners           
          rely in part on Commissioner v. Crichton, 122 F.2d 181 (5th Cir.            
          1941), which held that an undivided fractional interest in                  
          mineral rights on unimproved country land was of like kind to               
          undivided interests in improved city lots.  Petitioners cite                
          Crichton for the proposition that section 1031 is to be liberally           
          construed to effect legislative intent and that the only                    
          distinction that would justify disqualification must be “the                
          broad one between classes and characters of properties, for                 
          instance, between real and personal property.”  Id. at 182; see             
          also sec. 1.1031(a)-1, Income Tax Regs.9  Petitioners argue that            

               9 In pertinent part, sec. 1.1031(a)-1, Income Tax Regs.,               
          provides as follows:                                                        
                         (b) Definition of “like kind.”  As used                      
                    in section 1031(a), the words “like kind”                         
                    have reference to the nature or character of                      
                    the property and not to its grade or quality.                     
                    One kind or class of property may not, under                      
                    that section, be exchanged for property of a                      
                    different kind or class.  The fact that any                       
                    real estate involved is improved or                               
                    unimproved is not material, for that fact                         
                    relates only to the grade or quality of the                       
                    property and not to its kind or class.                            
                    Unproductive real estate held by one other                        
                    than a dealer for future use or future                            
                    realization of the increment in value is held                     
                    for investment and not primarily for sale.                        
                    * * *                                                             
                         (c) Examples of exchanges of property of                     
                    a “like kind.”  No gain or loss is recognized                     
                    if * * *                                                          
                                                             (continued...)           





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