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petitioner bears the burden of showing that the property was held
as a capital asset, Guardian Indus. Corp. & Subs. v.
Commissioner, 97 T.C. 308, 316 (1991), affd. without published
opinion 21 F.3d 427 (6th Cir. 1994). See also Pritchett v.
Commissioner, supra at 164 (“Petitioner has the burden of proving
that when he dealt with the parcels of land here involved he was
wearing the hat of an investor rather than that of a dealer.”).
Respondent argues that petitioner was in the business of
buying and selling real estate at the time of the sales, that
“petitioner agrees that he is not entitled to capital gain
treatment for any of the numerous properties which he sold [in
that business] during the years at issue”, and that he has failed
to meet his burden of demonstrating that he held the parcels as
an investor, rather than a dealer. Petitioner, on the other
hand, contends that he acquired the parcels with the intention of
holding them as long-term investments, that he did not develop
the parcels, did not advertise them for sale, did not attempt to
change the zoning of the property, and that it was Mr. Carter,
not petitioner, who initiated the discussions regarding the sales
of the parcels.
Petitioner stipulated that “Since the mid 1970s through the
present, the petitioner has been in the business of buying and
selling real estate and real estate development.” Nevertheless,
petitioner contends that his ordinary course of business is “the
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