- 20 - Commissioner, 116 T.C. 450, 463-464 (2001). For example, carved- out oil payments, although characterized as real property under State law, were found not to be like kind to a fee interest in real estate. Fleming v. Commissioner, supra at 823-824. See also Wiechens v. United States, 228 F. Supp. 2d 1080, 1085 (D. Ariz. 2002), where 50-year water rights were not like kind to a fee interest in real estate, and Clemente, Inc. v. Commissioner, T.C. Memo. 1985-367, where an 8-acre parcel of land was not like kind to gravel extraction rights in another parcel of land. To decide whether an exchange is like kind within the meaning of section 1031(a), we must compare the exchanged properties to ascertain whether the nature and character of the transferred rights in and to the respective properties are substantially alike. Koch v. Commissioner, supra at 64-65; sec. 1.1031(a)-1(b), Income Tax Regs. See generally the discussion in Smalley v. Commissioner, supra at 461-464. We conclude that the real property interest status under New Mexico law of the TEPCO and WEF supply contracts is not determinative of whether those supply contracts constitute like-kind property as opposed to boot under section 1031. See Koch v. Commissioner, supra at 64-65. In making this comparison, consideration is to be given to the respective interests in the physical properties, the nature of the title conveyed, the rights of the parties, the duration of the interests, and any other factor bearing on the nature orPage: Previous 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 Next
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