KEM v. C. I. R.

No. 24151.

432 F.2d 961 (1970)

Harry H. KEM, Jr., and Diane C. Kem, Charles E. Miller and Mary J. Miller, Petitioners-Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.

United States Court of Appeals, Ninth Circuit.

Rehearing Denied December 10, 1970.


Attorney(s) appearing for the Case

Walter H. Pendergrass (argued), Bullivant, Wright, Johnson, Pendergrass & Hoffman, Portland, Or., for petitioners-appellants.

Issie L. Jenkins (argued), Meyer Rothwacks, Wm. A. Friedlander, Attys., Johnnie M. Walters, Asst. Atty. Gen., Tax Division, Dept. of Justice, Richard M. Hahn, Acting Chief Counsel, I. R. S., Washington, D. C., for respondent-appellee.

Before DUNIWAY, WRIGHT and TRASK, Circuit Judges.


EUGENE A. WRIGHT, Circuit Judge:

At issue in this case is whether a depreciation deduction is available to an owner of breeding cattle who leases them to another under conditions so strict as to protect the lessor against any real economic loss. We hold it is not and affirm the ruling of the Tax Court.

Cattle breeding, the business involved here, presents a classical example of how to derive income from capital within the meaning of Eisner v. Macomber,

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