Steven J. and Terry L. Namyst - Page 16

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          of the old tools as compensation.  It is likely that some of                
          petitioner’s old tools qualified as capital assets under section            
          1221 and some of the old tools were property used in petitioner’s           
          trade or business (of being an employee of IMC) of a character              
          subject to the allowance for depreciation under section                     
          167(a)(1).3  See Noyce v. Commissioner, 97 T.C. 670, 683 (1991).            
          It is unnecessary for us to distinguish among petitioner’s old              
          tools; the result is the same.  Gain from the sale of a capital             
          asset held longer than 1 year is long-term capital gain under               
          section 1222(3), and net gain from the sale of property used in a           
          taxpayer’s trade or business is treated as long-term capital gain           
          under section 1231(a)(1).  Petitioner has shown that he owned all           
          of the old tools for more than 1 year before he first began                 
          selling them to IMC; i.e., March 1996.  We believe, based on                
          petitioner’s testimony and the photographs the parties submitted            
          of petitioner’s old tools, that these were tools petitioner owned           
          for both everyday use and use in his work for many years.4                  

               3We do not believe that any of the tools petitioner sold to            
          IMC during 1999 should be characterized as supplies of a type               
          regularly used or consumed by petitioner in the ordinary course             
          of his trade or business within the meaning of sec. 1221(a)(8).             
          Any such supplies held or acquired by a taxpayer on or after Dec.           
          17, 1999, are excluded from characterization as capital assets by           
          sec. 1221(a)(8).                                                            
               4We make the distinction between long- and short-term                  
          capital gain with respect to petitioner’s old tools only.  IMC              
          reimbursed petitioner for the new equipment he purchased for IMC            
          during 1994, 1995, 1996, 1997, 1998, and 1999 as part of the                
                                                             (continued...)           





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