Timothy J. Phelan and Deborah A. Phelan - Page 21

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         profits are more indicative of real property held as an                      
         investment.  See Bramblett v. Commissioner, supra at 531; Hancock            
         v. Commissioner, supra.                                                      
              JCLC purchased the Jackson Creek property in 1994 and held              
         it for approximately 4 years before selling parcels to Elite and             
         Vision in 1998.  In a case cited by respondent, the taxpayer was             
         in the real estate business, but they maintained that the purpose            
         for holding the property switched to investment when the taxpayer            
         began full-time activity in the lumber business.  See Mauldin v.             
         Commissioner, 195 F.2d at 716.  During an 8-year period the                  
         taxpayer sold real property in 25 separate transactions.  The                
         Court of Appeals for the Tenth Circuit agreed with this Court’s              
         holding that the taxpayer’s transactions in Mauldin were                     
         sufficiently substantial and frequent to be sales in ordinary                
         course of the taxpayer’s business.  The Court of Appeals found it            
         important that a significant portion of the taxpayer's income was            
         derived from the sale of real estate.                                        
              In arguing that JCLC’s sales were sufficiently frequent and             
         substantial, respondent emphasizes that substantially all of                 
         JCLC’s 1998 income derived from gains on the sale of real                    
         property.  We do not find this fact to be fatal, as JCLC does not            
         engage in any other activity from which it could economically                
         benefit, and two sales of real property by JCLC in 4 years were              
         of insufficient frequency to support the conclusion that JCLC’s              






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