OPINION.
Black, Judge:
Respondent, in his brief, concedes that the sales during 1944 and 1945 of all cattle purchased by petitioner and held by him for more than 6 months are entitled to capital gains treatment under the provisions of section 117 (j) of the Internal Revenue Code of 1939.3 The only question for our consideration, therefore, is whether respondent erred in determining that the cattle raised by petitioner and sold during 1944 and 1945, after being held for more than 6 months but prior to their reaching 24 months of age, were held “primarily for sale to customers in the ordinary course of his [petitioner’s] trade or business.” If respondent’s determination is correct the proceeds of those sales constitute ordinary income, not capital gains under section 117 (j). Petitioner must bear the burden of proving that respondent erred in his determination.
Whether or not the cattle in question were, under section 117 (j) (1), held “primarily for sale,” as determined by respondent, or “held * * * for * * * breeding, or dairy purposes,” as contended by petitioner, is a question of fact. Estate of C. A. Smith, 23 T. C. 690. This Court considered the identical question, applicable to this petitioner’s 1946 tax year, in a prior proceeding reported in 17 T. C. 210. In that case we held, on the basis of the record there before us, that the cattle raised by petitioner and sold when they were 24 months of age or less (the approximate age at which their first offspring would be born) were held primarily for sale and the proceeds of those sales were, therefore, not entitled to capital gains treatment.
In the course of our Opinion in the earlier case, we stated:
While there was always the possibility that any individual bull calf might ultimately become a part of petitioner’s breeding herd, it is obvious that most of the bull calves born would be sold whether they were good enough for petitioner’s herd or not. * * *
It is true that the standards for petitioner’s herd were high. But we think the evidence establishes that those standards were set for the bona fide purpose of improving petitioner’s herd and that if a particular animal met those standards it would be retained. We are drawn to that conclusion by our findings (a) that petitioner’s Guernsey herd was in fact one of the best in the country; (b) that there was no predetermined limit on the size of the herd and there was sufficient acreage for the herd to increase; (c) that during the years in issue the size of the herd increased from 487 to 523 head; and (d) that, as evidenced by petitioner’s continual losses from his farm operations, he was willing to incur considerable expense to develop a herd of the highest quality.
On July 7,1954, our decision in the prior case was reversed by the Court of Appeals for the Second Circuit, McDonald v. Commissioner, 214 F. 2d 341. The Court of Appeals, obviously referring to the above-quoted sentence of our Opinion, plus the added statement therein that “it is apparent that petitioner never expected or intended to incorporate into his breeding herd all bull calves born on the farm,” commented as follows:
it was always clear and predictable that each year substantial numbers of them [cattle] would eventually be culled and sold. It was this predictability which led the Tax Court to the view that the young animals were held for sale up to the point where their breeding qualities had been tested by examination of their offspring. This period of time it fixed at 24 months; and so it held the proceeds of cattle sold earlier to be only income.
*******
We think, however, that this view penalizes breeders with skill sufficient to detect and cull inferior animals even before they have been bred. True, an affirmative judgment that an animal is superlative cannot be made without examination of its offspring. But the evidence is compelling that a negative judgment can often be made on the basis of such factors as brightness of eyes, width of nostrils, size of muzzle, length of neck, sharpness of shoulders, depth of chest and spring of ribs, straightness of back, width and level of rump, and, in the case of a cow, size of udder and its firm attachment to the body. Thus younger animals can be accurately culled, and the animals which the taxpayer sold were selected in this manner. Before an animal had been thus weeded out it was part of the regular herd, held for dairy and breeding purposes until it should prove unfit. See O’Neill v. United States, D. C. S. D. Cal., Vol. 5 CCH, 1952 Fed. Tax Rep. ¶ 9462, affirmed United States v. O’Neill, 9 Cir., 211 Fed. (2d) 701; Pfister v. United States, D. C. S. D., 102 Fed. Supp. 640, reversed on other grounds United States v. Pfister, 8 Cir., 205 Fed. (2d) 538.
Of course it was in the taxpayer’s contemplation that many or most of the animals would be found wanting and be sold. The operation might perhaps even have proved unfeasible without the income thus derived. And in a very real sense the taxpayer could have said at any moment that most of his calves were held for possible sale. But this was not the motive behind their retention and legislative history of the new law [4] shows that motive is to be controlling. And it is this new law which is and mnst be decisive.
Although the Court of Appeals’ decision is binding upon us in the prior case, it having established the law of that case, we are not compelled to follow it in the case now before us if we think it is wrong, however much we may respect the views of the Second Circuit. The reasons why our Court must endeavor to have a uniform treatment equally applicable as nearly as possible to all 48 States of the Union and equally applicable in all the United States Courts of Appeals is stated at some length in Estate of William E. Edmonds, 16 T. C. 110, 117. See also Albert L. Rowan, 22 T. C. 865, 873. Having this rule in mind, after careful consideration of the record which details every phase of petitioner’s operations, we conclude that our decision must, under the facts before us, accord with that of the Court of Appeals in the prior case.
We are persuaded that all the raised calves here in controversy were held for breeding or dairy purposes within the meaning of section 117(j) (1). It is not necessary that an animal reach maturity and produce a calf for it to fall within the wording of that section. The animal need not have been actually put to the prescribed use if it was in fact held for the purpose of being put to that use. McDonald v. Commissioner, supra; Fox v. Commissioner, (C. A. 4) 198 F. 2d 719, affirming 16 T. C. 854; Estate of C. A. Smith, supra. Actual use, of course, is an evidentiary factor to be taken into account in determining the factual question of the purpose for which the animal was held, but it is not the sole determinative. Moreover, we agree with the Court of Appeals in the prior case that it cannot be said that the raised calves were held primarily for sale merely because it could be predicted that some would be sold each year.5 See also United States v. Bennett, (C. A. 5) 186 F. 2d 407.
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OPINION.
Black, Judge:
Respondent, in his brief, concedes that the sales during 1944 and 1945 of all cattle purchased by petitioner and held by him for more than 6 months are entitled to capital gains treatment under the provisions of section 117 (j) of the Internal Revenue Code of 1939.3 The only question for our consideration, therefore, is whether respondent erred in determining that the cattle raised by petitioner and sold during 1944 and 1945, after being held for more than 6 months but prior to their reaching 24 months of age, were held “primarily for sale to customers in the ordinary course of his [petitioner’s] trade or business.” If respondent’s determination is correct the proceeds of those sales constitute ordinary income, not capital gains under section 117 (j). Petitioner must bear the burden of proving that respondent erred in his determination.
Whether or not the cattle in question were, under section 117 (j) (1), held “primarily for sale,” as determined by respondent, or “held * * * for * * * breeding, or dairy purposes,” as contended by petitioner, is a question of fact. Estate of C. A. Smith, 23 T. C. 690. This Court considered the identical question, applicable to this petitioner’s 1946 tax year, in a prior proceeding reported in 17 T. C. 210. In that case we held, on the basis of the record there before us, that the cattle raised by petitioner and sold when they were 24 months of age or less (the approximate age at which their first offspring would be born) were held primarily for sale and the proceeds of those sales were, therefore, not entitled to capital gains treatment.
In the course of our Opinion in the earlier case, we stated:
While there was always the possibility that any individual bull calf might ultimately become a part of petitioner’s breeding herd, it is obvious that most of the bull calves born would be sold whether they were good enough for petitioner’s herd or not. * * *
It is true that the standards for petitioner’s herd were high. But we think the evidence establishes that those standards were set for the bona fide purpose of improving petitioner’s herd and that if a particular animal met those standards it would be retained. We are drawn to that conclusion by our findings (a) that petitioner’s Guernsey herd was in fact one of the best in the country; (b) that there was no predetermined limit on the size of the herd and there was sufficient acreage for the herd to increase; (c) that during the years in issue the size of the herd increased from 487 to 523 head; and (d) that, as evidenced by petitioner’s continual losses from his farm operations, he was willing to incur considerable expense to develop a herd of the highest quality.
On July 7,1954, our decision in the prior case was reversed by the Court of Appeals for the Second Circuit, McDonald v. Commissioner, 214 F. 2d 341. The Court of Appeals, obviously referring to the above-quoted sentence of our Opinion, plus the added statement therein that “it is apparent that petitioner never expected or intended to incorporate into his breeding herd all bull calves born on the farm,” commented as follows:
it was always clear and predictable that each year substantial numbers of them [cattle] would eventually be culled and sold. It was this predictability which led the Tax Court to the view that the young animals were held for sale up to the point where their breeding qualities had been tested by examination of their offspring. This period of time it fixed at 24 months; and so it held the proceeds of cattle sold earlier to be only income.
*******
We think, however, that this view penalizes breeders with skill sufficient to detect and cull inferior animals even before they have been bred. True, an affirmative judgment that an animal is superlative cannot be made without examination of its offspring. But the evidence is compelling that a negative judgment can often be made on the basis of such factors as brightness of eyes, width of nostrils, size of muzzle, length of neck, sharpness of shoulders, depth of chest and spring of ribs, straightness of back, width and level of rump, and, in the case of a cow, size of udder and its firm attachment to the body. Thus younger animals can be accurately culled, and the animals which the taxpayer sold were selected in this manner. Before an animal had been thus weeded out it was part of the regular herd, held for dairy and breeding purposes until it should prove unfit. See O’Neill v. United States, D. C. S. D. Cal., Vol. 5 CCH, 1952 Fed. Tax Rep. ¶ 9462, affirmed United States v. O’Neill, 9 Cir., 211 Fed. (2d) 701; Pfister v. United States, D. C. S. D., 102 Fed. Supp. 640, reversed on other grounds United States v. Pfister, 8 Cir., 205 Fed. (2d) 538.
Of course it was in the taxpayer’s contemplation that many or most of the animals would be found wanting and be sold. The operation might perhaps even have proved unfeasible without the income thus derived. And in a very real sense the taxpayer could have said at any moment that most of his calves were held for possible sale. But this was not the motive behind their retention and legislative history of the new law [4] shows that motive is to be controlling. And it is this new law which is and mnst be decisive.
Although the Court of Appeals’ decision is binding upon us in the prior case, it having established the law of that case, we are not compelled to follow it in the case now before us if we think it is wrong, however much we may respect the views of the Second Circuit. The reasons why our Court must endeavor to have a uniform treatment equally applicable as nearly as possible to all 48 States of the Union and equally applicable in all the United States Courts of Appeals is stated at some length in Estate of William E. Edmonds, 16 T. C. 110, 117. See also Albert L. Rowan, 22 T. C. 865, 873. Having this rule in mind, after careful consideration of the record which details every phase of petitioner’s operations, we conclude that our decision must, under the facts before us, accord with that of the Court of Appeals in the prior case.
We are persuaded that all the raised calves here in controversy were held for breeding or dairy purposes within the meaning of section 117(j) (1). It is not necessary that an animal reach maturity and produce a calf for it to fall within the wording of that section. The animal need not have been actually put to the prescribed use if it was in fact held for the purpose of being put to that use. McDonald v. Commissioner, supra; Fox v. Commissioner, (C. A. 4) 198 F. 2d 719, affirming 16 T. C. 854; Estate of C. A. Smith, supra. Actual use, of course, is an evidentiary factor to be taken into account in determining the factual question of the purpose for which the animal was held, but it is not the sole determinative. Moreover, we agree with the Court of Appeals in the prior case that it cannot be said that the raised calves were held primarily for sale merely because it could be predicted that some would be sold each year.5 See also United States v. Bennett, (C. A. 5) 186 F. 2d 407.
Neither is it fatal to petitioner’s case that the greater part of the income from the farm operations was derived from sales of the cattle in question. Though that circumstance does weigh against petitioner we think it is counterbalanced by other factors present. The animals in question were sold at all ages rather than at the earlier ages only, indicating that their disposal was motivated not by a desire for profit from such sales but, rather, because of their unfitness for the breeding and dairy purposes held. See McDonald v. Commissioner, supra, footnote 1. Further, petitioner’s seeming willingness to incur continual losses from his operation, when it appears that those losses might have been eliminated by a different policy regarding sales from his herd, lends color to his assertion that improving the herd and retaining the cattle in question for that purpose was his true intent.
Respondent’s use of the so-called age test to determine which cattle were and were not held for breeding or dairy purposes (setting 24 months of age as the dividing line) was derived from the Fox case, supra. In Estate of C. A. Smith, supra, this Court made the following observations:
We adopted the age test in the Fox case because we had to make an approximation of which animals involved were part of the breeding herd. In that case, the taxpayers had relied exclusively on the fact that the registration of their purebred animals was enough to classify them as members of the breeding herd. We felt that more evidence of the purpose for which the animals were held was necessary. However, we were convinced that some of the animals involved were part of the breeding herd but, because of the state of the record in that case, we were unable to determine with respect to particular animals whether or not they were used for breeding. Therefore, we adopted the age test as a kind of rule of evidence to decide the case. On review, the Fourth Circuit held that our test was reasonable and fair in the circumstances of that case.
We then went on to say in the Smith case that respondent’s proposed age test was erroneous in that it made immaturity conclusive, whereas the Fourth Circuit in the Fox case noted that, under the amended section 117 (j) (1), “The important thing is not the age of the animals but the purpose for which they are held,” 198 F. 2d at p. 722.
The evidence in the instant case distinguishes it from Fox and makes it unnecessary to resort to the age test. Petitioner here does not solely rely on registration of his cattle to prove the purpose for which they were held. Rather, he has given us a picture of his complete method of operation, emphasizing the selective breeding practices followed. We are convinced, as was the Second Circuit in the previous McDonald case, that although an affirmative judgment cannot be made that an animal is of the quality desired prior to examination of its offspring, it is possible prior to that time to make a negative judgment (on the basis of objective physical characteristics) that an animal is unsatisfactory. It has been established to our satisfaction that the animals sold by petitioner were disposed of solely on the basis of such judgments as not being fit for breeding or milk producing, and that they were held for those purposes before disposal. Moreover, we note that in Fox the ages at which the animals were sold depended on the preferences and desires of purchasers, whereas here the age of sale was that age at which it became evident that the particular animal did not meet the established standards for breeding or milk producing.
We are aware that on facts somewhat similar to those in the instant case it was held, in Gotfredson v. Commissioner, (C. A. 6) 217 F. 2d 673, affirming a Memorandum Opinion of this Court, that taxpayer’s cows (and heifers) under 36 months of age and bulls under 48 months of age, at time of sale, were not held for dairy purposes but were held for sale to customers in the ordinary course of trade or business, and that the gain on their sale was therefore taxable as ordinary income. It is noted, however, that the court was influenced by the fact that during the years in issue taxpayer advertised his stock for sale in various issues of three magazines and used stationery with a letterhead describing himself only as a breeder. In the instant case petitioner advertised only once a month in one magazine and never advertised any specific animals for sale; rather his ads mentioned no more than that occasionally some of his stock would be for sale. Petitioner also had a booklet of the herd’s history printed in 1945 to show prospective purchasers visiting the farm. But the purpose of the booklet was to save the farm’s key personnel from spending time in personally relating the herd’s history to such prospective purchasers. This would seem to indicate that the sales function was minimized on petitioner’s farm and his personnel were intended to devote as much time as possible to the breeding and dairy functions. At any rate, we think petitioner’s magazine advertising and his booklet constituted no more than an advantageous method of liquidating his investment in the cattle sold and was not so extensive as to place him in the trade or business of selling such cattle.
Admittedly the question here is a difficult factual one to decide. The Sixth Circuit in Gotfredson, supra, took note of this indicating that if the question had arisen before it in a trial de novo, rather than on appeal from this Court, it might have reached the conclusion arrived at by the Second Circuit in McDonald.6 After carefully considering the record before us, however, we have concluded that petitioner has carried his burden of proving that respondent erred in his determination. The cattle raised by petitioner and sold between the ages of 6 and 24 months were held for breeding or dairy purposes and the proceeds of those sales are entitled to capital gains treatment under section 117 (j).
Reviewed by the Court.
Decision will be entered under Rule 50.