- 11 - section 7491 to prove the classic cars were held as an investment and subject to capital treatment.12 B. Williford Factors Our Court generally uses a number of factors to determine whether property is held for investment or held for sale. See Williford v. Commissioner, T.C. Memo. 1992-450.13 In Williford, we examined whether a taxpayer’s art collection was held primarily for sale to customers in the ordinary course of business. The taxpayer in Williford was a part-time art dealer 12Petitioner also argues that respondent must abide by Rev. Rul. 75-538, 1975-2 C.B. 35, which presumes that a taxpayer engaged in the trade or business of selling motor vehicles holds its vehicles primarily for sale, and not as an investment. We find it unnecessary to address Rev. Rul. 75-538, supra, because we find that the evidence favors petitioner’s position as to the character of the classic cars, irrespective of the presumption. 13Other courts use similar factors to determine whether property is held for investment or for sale. For example, the Court of Appeals for the Fifth Circuit, where appeal will lie, uses the following factors: (1) The nature and purpose of the acquisition of the property and the duration of the ownership; (2) the extent and nature of the taxpayer’s efforts to sell the property; (3) the number, extent, continuity and substantiality of the sales; (4) the extent of subdividing, developing, and advertising to increase sales; (5) the use of a business office for the sale of the property; (6) the character and degree of supervision or control exercised by the taxpayer over any representative selling the property; and (7) the time and effort the taxpayer habitually devoted to the sales. United States v. Winthrop, 417 F.2d 905, 909-910 (5th Cir. 1969) (citing Smith v. Dunn, 224 F.2d 353, 356 (5th Cir. 1955)); see also Howell v. Commissioner, 57 T.C. 546, 554 (1972) (six factors); Maddux Constr. Co. v. Commissioner, 54 T.C. 1278, 1284 (1970) (nine factors). The factors are usually used to classify real estate. In Williford v. Commissioner, supra, the factors were used to classify artwork. We have found no cases where the factors were used to classify cars.Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Next
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