CARTER v. COMMISSIONER OF INTERNAL REVENUE

No. 17162.

257 F.2d 595 (1958)

Bernard B. CARTER (B. B. Carter) and Tommie Velma Carter, Husband and Wife, Petitioners, v. COMMISSIONER OF INTERNAL REVENUE, Respondent.

United States Court of Appeals Fifth Circuit.

June 30, 1958.


Attorney(s) appearing for the Case

Wentworth T. Durant, Robert J. Hobby, Dallas, Tex., for petitioners.

Kenneth E. Levin, Atty., Dept. of Justice, Washington, D. C., Charles K. Rice, Asst. Atty. Gen., Dept. of Justice, Lee A. Jackson, I. Henry Kutz, Attys., Dept. of Justice, Arch M. Cantrall, Chief Counsel, Charles Owen Johnson, Sp. Atty., I.R.S., Washington, D. C., for respondent.

Before HUTCHESON, Chief Judge, and TUTTLE and CAMERON, Circuit Judges.


TUTTLE, Circuit Judge.

The principal question presented on this petition to review the decision of the Tax Court is whether the court erred in holding that the proceeds of a sale of 386 head of heifers were taxable to petitioner as ordinary income rather than as gain from the sale of a capital asset. The correct answer to that question by the Tax Court depends on whether the cattle in question were a "breeding herd" which thus were "used in the trade or business"...

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