Willamette Industries, Inc. - Page 5




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          had sold the damaged trees on the open market instead of further            
          processing and/or milling the damaged trees into finished                   
          products.  Petitioner further contends that it is not attempting            
          to defer any portion of the gain attributable to the processing,            
          milling, or finishing of products.5  Respondent determined that             
          petitioner understated income by improperly deferring gain from             
          the sale of the end product of the damaged trees, as follows:               
          1992--$647,953; 1993--$2,276,282; 1994--$3,592,035; and                     
          1995--$4,831,462.                                                           
          Discussion                                                                  
               The specific question we consider is whether petitioner is             
          disqualified from electing deferral of gain under section 1033              
          because it processed damaged trees into end or finished products            


               5 Based on a hypothetical example presented by petitioner,             
          the majority of the gain deferred would appear to be attributable           
          to the difference between the fair market value of the damaged              
          trees and petitioner’s basis.  Petitioner posed a hypothetical              
          example which included the premises that the damaged trees had a            
          $100 basis and a $475 selling price if sold in place.  If the               
          damaged trees were processed into logs, the processing cost would           
          be $25 resulting in a $500 selling price.  Petitioner further               
          posits that the cost of milling timber is $100 and that a                   
          finished product would have a $610 selling price, resulting in              
          $10 of gain from milling.  Petitioner argues that, under this               
          hypothetical, respondent would have allowed a deferral of the               
          $375 gain if petitioner had sold the damaged trees in place.                
          Petitioner contends that respondent has denied any deferral                 
          whatsoever, even though the milling of timber into a final                  
          product adds only $10 of additional gain in the context of                  
          petitioner’s hypothetical.  We consider here only whether                   
          petitioner is entitled to use sec. 1033.  The parties have left             
          to another day the question of the amount of gain to be deferred            
          if petitioner’s motion for partial summary judgment is granted.             
          See infra note 6.                                                           




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