Dover Corporation and Subsidiaries - Page 31

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          debentures) was excluded from FPHCI by the same country                     
          exception.                                                                  
                    3.  The Caselaw                                                   
               Respondent relies principally upon four cases in support of            
          his argument that the H&C assets were not used in Dover UK’s                
          business before their deemed sale by Dover UK:  Reese v.                    
          Commissioner, 615 F.2d 226 (5th Cir. 1980), affg. T.C. Memo.                
          1976-275; Azar Nut Co. v. Commissioner, 94 T.C. 455 (1990), affd.           
          931 F.2d 314 (5th Cir. 1991); Acro Manufacturing Co. v.                     
          Commissioner, 39 T.C. 377 (1962), affd. 334 F.2d 40 (6th Cir.               
          1964); and Ouderkirk v. Commissioner, T.C. Memo. 1977-120.  In              
          three of those cases (Reese, Azar Nut, and Ouderkirk) the issue             
          is whether an individual’s gain or loss on the sale of a parcel             
          of real property is capital or ordinary.                                    
                    a.  Reese v. Commissioner                                         
               In Reese, the taxpayer financed the construction of a                  
          manufacturing plant, which he intended to sell to investors who             
          would agree to lease the building to a corporation for use in the           
          corporation’s manufacturing business.  The taxpayer was the chief           
          officer and principal shareholder of the corporation.  The                  
          partially completed plant was sold at a loss to satisfy a                   
          judgment against the taxpayer.  The issue was whether the loss              
          was capital or ordinary.  The taxpayer argued for ordinary loss             
          treatment on the ground that the plant was either (1) held                  
          primarily for sale to customers in the ordinary course of his               




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