Walter L. Medlin - Page 145

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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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