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ALKIRE v. RIDDELL

No. 22070.

397 F.2d 779 (1968)

Fred W. ALKIRE and Lois O. Alkire, Appellants, v. Robert A. RIDDELL, Appellee.

United States Court of Appeals Ninth Circuit.

July 8, 1968.

Attorney(s) appearing for the Case

Paul Frederic Marx (argued), of Wenke, Pilskaln, Kemble & Marx, Santa Ana, Cal., for appellants.

Grant W. Wiprud (argued), Lee A. Jackson, Marian Halley, Attys., Dept. of Justice, Washington, D. C., Mitchell Rogovin, Asst. Atty. Gen., Tax Div., Dept. of Justice, Washington, D. C., William M. Byrne, Jr., U. S. Atty., Los Angeles, Cal., for appellee.

Before BARNES and BROWNING, Circuit Judges, and SOLOMON, District Judge.

SOLOMON, District Judge:

The issue involved in this appeal is whether royalty payments based upon the extraction of sand and gravel are entitled to capital gains treatment or whether, as the District Court found, they are ordinary income subject to the depletion allowance.

Beginning in December, 1954, Fred W. Alkire (the taxpayer)1 conducted a sand and gravel business on leased property. In the summer of 1955, Star Rock Products...

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