Dover Corporation and Subsidiaries - Page 35

                                       - 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

Last modified: May 25, 2011