Joseph Baum and Ida Baum, Appellants, v. United States of America, Appellee, 409 F.2d 829 (5th Cir. 1969)

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U.S. Court of Appeals for the Fifth Circuit - 409 F.2d 829 (5th Cir. 1969) April 18, 1969
Rehearing Denied June 13, 1969

Hugh F. Culverhouse, Culverhouse, Tomlinson, Taylor & DeCarion, Kenneth G. Anderson, Fred M. Cone, Jr., Jacksonville, Fla., for appellants.

William A. Meadows, Jr., U. S. Atty., Miami, Fla., Mitchell Rogovin, Lee A. Jackson, Elmer J. Kelsey, Chester C. Davenport, Jr., Attys., Dept. of Justice, Tax Div., Washington, D. C., Lavinia L. Redd, Asst. U. S. Atty., of counsel, for appellee.

Before GEWIN, McGOWAN*  and MORGAN, Circuit Judges.


This appeal involves federal income taxes for the taxable year 1963 in the amount of $1,746.80. Appellants Joseph and Ida Baum instituted this refund action on the premise that income which they received from the sale of certain real estate was entitled to capital gains treatment. The jury returned a verdict that the taxpayer held the property in question primarily for sale in the ordinary course of his trade or business and as such was not entitled to long term capital gains treatment on the amounts derived from the sale of the property. This appeal followed.

In determining whether property sold by a taxpayer was held primarily for sale to customers in the ordinary course of business, a court may consider the nature and character of the taxpayer's title, the reason, purpose and intent of acquisition and ownership and its duration, the taxpayer's vocation, the extent of his activities and if these activities were conducted through a representative, the character and degree of supervision or control exercised by the taxpayer, and the extent and nature of the efforts to sell. United States v. Burket, 402 F.2d 426 (5 Cir., 1968). A review of the record reveals ample and substantial evidence to support the jury's verdict.

We affirm.


Judge Carl McGowan of the District of Columbia Circuit, sitting by designation