Nathaniel H. and Carol A. Garfield - Page 6

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          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).                                                       





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