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DINGMAN v. UNITED STATES

No. 19893.

429 F.2d 70 (1970)

Aloyius T. and Gladys DINGMAN, Appellees, v. UNITED STATES of America, Appellant.

United States Court of Appeals, Eighth Circuit.

July 21, 1970.

Attorney(s) appearing for the Case

David E. Carmack, Atty., Dept. of Justice, Washington, D. C., for appellant, and filed brief; Johnnie M. Walters, Asst. Atty. Gen., and Lee A. Jackson and Grant W. Wiprud, Attys., Washington, D. C., and Robert G. Renner, U. S. Atty., Minneapolis, Minn., and Joseph T. Walbran, Asst. U. S. Atty., were on the brief with Mr. Carmack.

Dennis M. Mathisen, of Lindquist & Vennum, Minneapolis, Minn., for appellee, and filed brief; David E. Krause, Minneapolis, Minn., was on the brief with Mr. Mathisen.

Before MATTHES, Chief Judge, and LAY and HEANEY, Circuit Judges.

HEANEY, Circuit Judge.

The government appeals from the decision of the District Court granting the taxpayers' request for a tax refund. The issue posed is a narrow and often litigated one: Whether payments received for fill taken from the taxpayers' land should be treated as capital gains or as ordinary income subject to depletion allowances.

In 1943, the taxpayers purchased a 145-acre tract of land upon which they constructed and operated a riding stable...

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