- 6 - income for capital gain treatment pursuant to section 1235. We reject petitioners’ contentions because there is insufficient credible evidence to establish the existence of a forbearance agreement. Petitioners further contend that if capital gain treatment is not available pursuant to section 1235, then the payments are entitled to such treatment pursuant to sections 1221 and 1222. Section 1.1221-1(c)(1), Income Tax Regs., provides that a patent may qualify as a capital asset. In order to qualify for long- term capital gain treatment, however, a taxpayer must hold his capital asset for the requisite period prior to a sale or exchange. Sec. 1222(3). At no time during the existence of the partnership did Mr. Garfield hold a capital asset. Mr. Garfield and Mr. McSherry did make joint transfers of patent rights to MPC between 1978 and 1985, but Mr. Garfield did not hold the patent rights for the requisite period to qualify for long-term capital gain treatment. Accordingly, we sustain respondent’s determination.2 Section 6662(a) imposes a penalty equal to 20 percent of the amount of any underpayment attributable to a substantial 2 Pursuant to sec. 7491(a), petitioners have the burden of proof unless they introduce credible evidence relating to the issue that would shift the burden to respondent. Rule 142(a). Our conclusions, however, are based on a preponderance of the evidence, and thus the allocation of the burden of proof is immaterial. See Martin Ice Cream Co. v. Commissioner, 110 T.C. 189, 210 n.16 (1998).Page: Previous 1 2 3 4 5 6 7 8 Next
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