Milledge L. Middleton and Estate of Leone S. Middleton, Deceased,milledge L. Middleton, Executor, Petitioners, v. Commissioner of Internal Revenue, Respondent, 693 F.2d 124 (11th Cir. 1982)

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US Court of Appeals for the Eleventh Circuit - 693 F.2d 124 (11th Cir. 1982)

Dec. 6, 1982

Robert M. Fink, Atlanta, Ga., for petitioners.

Kenneth W. Gideon, Chief Counsel, I.R.S., Glenn L. Archer, Jr., Asst. Atty. Gen., Michael L. Paup, Chief, App. Sec., Gary R. Allen, R. Russell Mather, Tax Division, Dept. of Justice, Washington, D.C., for respondent.

Appeal from the Tax Court of the United States.

Before HILL and VANCE, Circuit Judges, and TUTTLE, Senior Circuit Judge.


This appeal presents the issue, as stated by the appellant, whether the losses resulting from the abandonment of real properties, each subject to nonrecourse debt in excess of the fair market value of the property, are capital losses subject to the limitations of Secs. 1211 and 1212 of the Internal Revenue Code of 1954 or are ordinary losses under Sec. 165 of the Internal Revenue Code of 1954.

The Tax Court held that when the owners of these properties volunteered to deed such parcels back to the mortgagees during the tax years, such actions by the taxpayers resulted in an abandonment of the parcels and that such abandonment resulted in capital losses rather than ordinary losses as claimed by the taxpayers. 77 T.C. 310 (1981).

We affirm the decision of the Tax Court and base our determination on the opinion of the Tax Court.