Harold F. Smith and Gertrude Smith v. Commissioner of Internal Revenue

Fifth Circuit

Harold F. Smith and Gertrude Smith v. Commissioner of Internal Revenue

338 F.2d 627, 14 A.F.T.R.2d (RIA) 5979, 1964 U.S. App. LEXIS 3756

CourtCourt of Appeals for the Fifth Circuit

DecidedNovember 27, 1964

Docket21390_1

StatusPublished

Cited by1 cases

This text of 338 F.2d 627 (Harold F. Smith and Gertrude Smith v. Commissioner of Internal Revenue) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Harold F. Smith and Gertrude Smith v. Commissioner of Internal Revenue, 338 F.2d 627, 14 A.F.T.R.2d (RIA) 5979, 1964 U.S. App. LEXIS 3756 (5th Cir. 1964).

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Opinion

PER CURIAM.

Although this Court has on occasion differed with the Tax Court in determining whether sales by a taxpayer of parcels of real estate are sales of property held primarily for sale to customers in the ordinary course of trade or business, see Smith v. Commissioner of Internal Revenue, 5 Cir., 232 F.2d 142, the record in this case does not warrant such disposition. The inferences drawn by the Tax Court were fully warranted by the evidence including considerable oral testimony. The fact determinations thus made may not be set aside unless clearly erroneous. This they are not.

We need not decide whether the houses which were rented while being held “for sale” were subject to depreciation. The *628 Commissioner allowed depreciation on a straight line basis on a 33% year life. This was not disturbed by the Tax Court. Its determination to permit this item to stand is not appealed by the Commissioner. We therefore also let it stand. The decision of the Tax Court is affirmed.

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PER CURIAM.

Although this Court has on occasion differed with the Tax Court in determining whether sales by a taxpayer of parcels of real estate are sales of property held primarily for sale to customers in the ordinary course of trade or business, see Smith v. Commissioner of Internal Revenue, 5 Cir., 232 F.2d 142, the record in this case does not warrant such disposition. The inferences drawn by the Tax Court were fully warranted by the evidence including considerable oral testimony. The fact determinations thus made may not be set aside unless clearly erroneous. This they are not.

We need not decide whether the houses which were rented while being held “for sale” were subject to depreciation. The *628 Commissioner allowed depreciation on a straight line basis on a 33% year life. This was not disturbed by the Tax Court. Its determination to permit this item to stand is not appealed by the Commissioner. We therefore also let it stand. The decision of the Tax Court is affirmed.

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338 F.2d 627, 14 A.F.T.R.2d (RIA) 5979, 1964 U.S. App. LEXIS 3756, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harold-f-smith-and-gertrude-smith-v-commissioner-of-internal-revenue-ca5-1964.

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