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SUBURBAN REALTY CO. v. UNITED STATES

No. 77-3094.

615 F.2d 171 (1980)

SUBURBAN REALTY COMPANY, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

United States Court of Appeals, Fifth Circuit.

April 7, 1980.

Attorney(s) appearing for the Case

Gerald W. Haddock, Charles W. Hall, Houston, Tex., for plaintiff-appellant.

M. Carr Ferguson, Asst. Atty. Gen., Tax Div., Gilbert E. Andrews, Act. Chief, Appellate Section, Richard Farber, Atty., Marilyn E. Brookens, Tax Div., Dept. of Justice, Washington, D. C., for defendant-appellee.

Before GOLDBERG, FAY and ANDERSON, Circuit Judges.

GOLDBERG, Circuit Judge:

We must today answer the riddle at once adumbrated and apparently foreclosed by the false dichotomy created by the United States Supreme Court in Malat v. Riddell, 383 U.S. 569, 572, 86 S.Ct. 1030, 1032, 16 L.Ed.2d 102 (1966) (per curiam): when profits have "aris[en] from the [ordinary] operation of a business" on the one hand and are also "the realization of appreciation in value over a substantial...

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