Opinion

Weis v. Commissioner

  • 30 B.T.A. 478
  • 1934 BTA LEXIS 1314
Court
United States Board of Tax Appeals
Filed
Apr 26, 1934
Status
Published
Author
Smith
On the bench
Smith, Tkammell
Cited by
10 cases

“The term ‘election’ in its legal sense means the choice of one of two rights or things, to each of which the party choosing has an equal right, but both of which he can not have, * * * as when a man is left to his own free will to take or do one thing or another, which he pleases, * * * a choice between different things, * * * the act of electing or choosing’”

How later courts described this case

  • “The term ‘election’ in its legal sense means the choice of one of two rights or things, to each of which the party choosing has an equal right, but both of which he can not have, * * * as when a man is left to his own free will to take or do one thing or another, which he pleases, * * * a choice between different things, * * * the act of electing or choosing’”

Written by the judges who cited it.

The opinion

Smith,

dissenting: The majority opinion stands for the proposition that where a taxpayer files an income tax return and reports a part of the profit from the sale of capital assets as liable to ordinary income tax and the balance as capital net gain, the taxpayer has failed to elect that the gain should be taxable as capital net gain. In such a case I think the taxpayer has not failed to elect that the profits should be taxed as capital net gain and if it is more advantageous that the tax be computed upon the basis that the entire profit was capital net gain, the taxpayer is entitled to have his tax liability computed accordingly. The taxpayer should not be prejudiced by the fact that he was not aware that all of the profit should be treated as capital net gain instead of only a portion thereof.

AeuNdell agrees with this dissent.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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