Dover Corporation and Subsidiaries - Page 32

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          construction business or (2) used in a trade or business,                   
          excludable, in either case, from capital asset status under what,           
          respectively, are now paragraphs (1) and (2) of section 1221(a).            
          The Court of Appeals for the Fifth Circuit found that (1) the               
          taxpayer’s activities in financing and acting as builder,                   
          developer, and general contractor for the construction of the               
          plant between 1968 and 1970, when the building was sold,                    
          constituted “an isolated, non-recurring venture”, which did not             
          constitute a trade or business, and (2) the property sold was               
          intended for use by the corporation in its manufacturing                    
          business, not by the taxpayer in his business of being a                    
          corporate executive.  Reese v. Commissioner, 615 F.2d at 231.               
          Therefore, the Court of Appeals held that the property was not              
          excluded from the definition of a capital asset as either                   
          property held for sale to customers in the ordinary course of               
          business or as property used in the taxpayer’s trade or business.           
          Id.                                                                         
               In support of his argument that Dover UK’s deemed holding of           
          the H&C operating assets “for only a moment before the sale” did            
          not transform those assets into assets used in Dover UK’s                   
          business, respondent relies on the conclusion of the Court of               
          Appeals in Reese that an “isolated, non-recurring venture” cannot           
          amount to the conduct of a trade or business.  The facts before             
          the Court of Appeals, and the question it answered, however, are            






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