Rubino v. Commissioner of Internal Revenue (two Cases), 186 F.2d 304 (9th Cir. 1951)

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US Court of Appeals for the Ninth Circuit - 186 F.2d 304 (9th Cir. 1951) January 2, 1951
Rehearing Denied February 8, 1951

Wareham C. Seaman, Stockton, Cal., for petitioners.

Thereon Lamar Caudle, Asst. Atty. Gen., Ellis N. Slack, L. W. Post, Spc. Assts. to Atty. Gen., for respondent.

Before STEPHENS and HEALY, Circuit Judges, and MATHES, District Judge.


These cases are here on petition to review a decision of the Tax Court relating to a deficiency assessment. The Commissioner had determined that the property involved, namely, a number of houses constructed by the petitioners, were held by the latter primarily for sale to customers in the ordinary course of trade or business within the meaning of § 117(j) (1) of the Internal Revenue Code, 26 U.S.C.A. § 117(j) (1), hence the profit from the sale is taxable as ordinary income. Petitioners' argument is that the property was held primarily for rental purposes, and that the gains from the sales should be treated as long-term capital gains. The Tax Court made findings resolving the dispute in favor of the Commissioner's determination.

The issue is essentially one of fact. We see no clear error in the Court's finding, and its judgment is accordingly affirmed.