Estate of James G. Frazier, Deceased, James G. Frazier Jr., Executor - Page 8




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          trade fixtures within the meaning of California Code section                
          1019.  Id.5                                                                 
                                       OPINION                                        
               Petitioner has the burden of proving that the improvements             
          at issue are removable trade fixtures within the meaning of                 
          California Code section 1019.  Rule 142(a); Welch v. Helvering,             
          290 U.S. 111, 115 (1933).                                                   
               The parties stipulated that the improvements at issue are              
          removable trade fixtures within the meaning of California Code              
          section 1019 and remained the property of FNF at the time of                
          decedent’s death if we find that:  (1) FNF’s tenancy at will                
          under the lease continued notwithstanding the death of decedent;            
          (2) the improvements could be removed without injury to the                 
          premises; and (3) the improvements, by the manner in which they             
          were affixed, had not become an integral part of the premises.              
          In our original opinion, we ruled on the first element.  The U.S.           
          Court of Appeals reversed and held that FNF’s tenancy, and,                 
          hence, implied right of removal, continued notwithstanding the              
          death of decedent.  We must determine, therefore, whether the               

               5  In our opinion, we found that “The improvements placed on           
          the land by FNF were ‘trade fixtures’ within the meaning of                 
          California Civil Code section 1019.”  Estate of Frazier v.                  
          Commissioner, T.C. Memo. 1999-201.  This statement is not                   
          dispositive of the question we are directed to resolve on remand.           
          We construe the question posed by the U.S. Court of Appeals as              
          the parties construe it, infra, whether the improvements meet the           
          elements of California Code sec. 1019 in order to qualify as a              
          removable trade fixture.                                                    





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