- 35 - In Azar Nut Co. v. Commissioner, 94 T.C. 455 (1990), the taxpayer, in connection with its termination of an individual’s employment, purchased the employee’s residence at an appraised fair market value pursuant to the terms of an employment agreement. The taxpayer immediately listed the house for sale at the purchase price paid to its former employee but eventually incurred a substantial loss on the sale, some 22 months later. Because the house was never held for rental by the taxpayer or used or intended for use in the taxpayer’s business, we held that it was not exempt from capital asset status as property used in a trade or business and that the loss was, therefore, capital loss.14 Id. at 463-464. In Azar Nut, as in Ouderkirk v. Commissioner, supra, and Reese v. Commissioner, supra, capital asset status was based upon insufficient (or no) business use, not, as respondent argues in this case, upon the identity of the user of assets undeniably used in a trade or business. 14 The taxpayer in Azar Nut Co. v. Commissioner, 94 T.C. 455 (1990), affd. 931 F.2d 314 (5th Cir. 1991), argued that the house was not a capital asset because its purchase from the terminated employee and subsequent resale were connected with the taxpayer’s business; i.e., the transactions arose out of a business necessity, not an investment purpose. We rejected that argument on the basis of Ark. Best Corp. v. Commissioner, 485 U.S. 212 (1988). That case rejected the business connection- business motivation rationale of such cases as Commissioner v. Bagley & Sewall Co., 221 F.2d 944 (2d Cir. 1955)(relied upon by the taxpayer in Azar Nut), affg. 20 T.C. 983 (1953), and held that property constitutes a capital asset unless it is excluded from capital asset status by one of the specific statutory exclusions listed in what is now sec. 1221(a). Ark. Best Corp. v. Commissioner, supra at 223.Page: Previous 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 Next
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