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PAYNE v. C. I. R.

Nos. 17643, 17644.

268 F.2d 617 (1959)

Leland D. PAYNE and wife, Zelma Payne, Petitioners, v. COMMISSIONER OF INTERNAL REVENUE, Respondent. Marion T. KEY, Executor of the Estate of J. T. Jenkins, Deceased, and Myrtle Jenkins, Petitioners, v. COMMISSIONER OF INTERNAL REVENUE, Respondent.

United States Court of Appeals Fifth Circuit.

June 29, 1959.

Attorney(s) appearing for the Case

No. 17644:

Charles K. Rice, Asst. Atty. Gen., Arch M. Cantrall, Chief Counsel, Claude R. Marshall, Special Atty., Internal Revenue Service, George W. Beatty, Atty., Dept. of Justice, Washington, D. C., for respondent.

No. 17643:

Charles K. Rice, Ass't. Atty. Gen., Howard A. Heffron, Acting Asst. Atty. Gen., Arch M. Cantrall, Chief Counsel, Claude R. Marshall, Special Atty., Internal Revenue Service, George W. Beatty, Lee A. Jackson, Dept. of Justice, Washington, D. C., for appellee.

Nos. 17643, 17644:

Harry Baum, Atty., Dept. of Justice, Washington, D. C., for appellee.

Wm. H. Evans, Lubbock, Texas, for petitioners.

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

TUTTLE, Circuit Judge.

Petitioners here seek a reversal of the decision of the Tax Court which held that gain they realized from retirement of stock in several apartment corporations was taxable as ordinary income rather than as capital gains.

In 1950, Congress amended Section 117 of the Capital Gains Section of the Internal Revenue Code of 1939, 26 U.S.C.A. § 117 by excluding from the capital gains treatment of certain proceeds from retirement of capital...

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