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WISEMAN v. BARBY

No. 9094.

380 F.2d 121 (1967)

Earl R. WISEMAN, Director of Internal Revenue for the District of Oklahoma, Appellant, v. Ralph E. BARBY and Marie Barby, husband and wife, Appellees.

United States Court of Appeals Tenth Circuit.

July 5, 1967.

Attorney(s) appearing for the Case

Jonathan S. Cohen, Atty., Dept. of Justice, Washington, D.C. (Mitchell Rogovin, Asst. Atty. Gen., Lee A. Jackson and Melva M. Graney, Attys., Dept. of Justice, Washington, D.C., B. Andrew Potter, U.S. Atty., and Michael C. Stewart, Asst. U.S. Atty., with him on the brief), for appellant.

John K. Speck, Oklahoma City, Okl. (Keith Drum, Beaver, Okl., with him on the brief), for appellees.

Before MURRAH, Chief Judge, and PICKETT and HICKEY, Circuit Judges.

PICKETT, Circuit Judge.

This is a tax refund case originating in the United States District Court for the Western District of Oklahoma. The sole question is whether taxpayers' gain from two sales of undivided one-half interests in an oil production payment is taxable as long-term capital gain or as ordinary income. 26 U.S.C. §§ 1221, 1222. Judgment was entered for the taxpayers, Ralph E. and Marie Barby, husband and wife.

The facts are fully stipulated...

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