Opinion

Parkside, Inc. And Beaconcrest, Inc. v. Commissioner of Internal Revenue

  • 571 F.2d 1092
  • 41 A.F.T.R.2d (RIA) 451
  • 1977 U.S. App. LEXIS 5785
Court
Court of Appeals for the Ninth Circuit
Filed
Dec 2, 1977
Status
Published
Author
Pregerson
On the bench
Choy, Kennedy, Pregerson
Cited by
20 cases
Authority
More cited than 25.1%

whether realty was held "primarily for sale in the ordinary course ... of trade or business" is a question of fact arguably mixed with law, subject to the "clearly erroneous" standard of review

How later courts described this case

  • whether realty was held "primarily for sale in the ordinary course ... of trade or business" is a question of fact arguably mixed with law, subject to the "clearly erroneous" standard of review
  • in deciding the purpose for which the taxpayer held property, the court considered the holding purpose of the taxpayer's shareholders' father, from whom the shareholders inherited the property
  • question of fact mixed with law
  • using section 1221(1) to help construe the meaning of section 543(b)(3)

Written by the judges who cited it.

The opinion

PREGERSON, District Judge,

concurring:

Whether taxpayers’ real property was “held primarily for sale to customers in the ordinary course of [taxpayers’] trade or business” within the meaning of 26 U.S.C. § 543 (b)(3) is a question of law, see Estate of Franklin v. Commissioner, 544 F.2d 1045, 1047, n. 3 (9th Cir. 1976), to which the “clearly erroneous” rule should be inapplicable. Winthrop v. Commissioner, 417 F.2d 905, 910 (5th Cir. 1969).

While referring to the “clearly erroneous” standard, Ninth Circuit cases such as Austin v. Commissioner, 263 F.2d 460 (1959), still carefully analyze the facts in light of the applicable law. This careful analysis, in effect, amounts to a de novo review of the Tax Court’s legal conclusion.

I vote to reverse because an analysis of the facts of this case in light of the applicable law reveals that the Tax Court reached an incorrect legal conclusion.

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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