Peabody Natural Resources Company, f.k.a. Hanson Natural Resources Company, Cavenham Forest Industries, Inc., A Partner Other Than The Tax Matters Partner - Page 20

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          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 or                






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