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SIMON v. C. I. R.

No. 79-2700.

644 F.2d 339 (1981)

Joseph SIMON and Jonnie H. Simon, Petitioners-Appellees, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellant. Warner L. MATHIS and Hazel Mathis, Petitioners-Appellees, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellant. John M. BEARD, Jr., Petitioner-Appellee, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellant.

United States Court of Appeals, Fifth Circuit. Unit B

April 17, 1981.

Attorney(s) appearing for the Case

M. Carr Ferguson, Asst. Atty. Gen., Gilbert E. Andrews, Chief, Appellate Section, Michael L. Paup, Helen A. Buckley, Tax Div., Dept. of Justice, Washington, D. C., for respondent-appellant.

Ball, Ball, Duke & Matthews, William S. Duke, John R. Matthews, Jr., Montgomery, Ala., for petitioners-appellees.

Before SIMPSON, RONEY and THOMAS A. CLARK, Circuit Judges.

RONEY, Circuit Judge:

The sole issue on appeal is whether a distribution by a company to its shareholders was incident to a liquidation or to a reorganization. If a liquidation, the distribution is taxed as capital gains. If a reorganization, it is taxed as ordinary income. The Tax Court found a liquidation. We reverse, holding the distribution, preceded by a transfer of "substantially all" of the company's operating assets to another company owned by the shareholders...

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