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CLARK v. C.I.R.

No. 86-1736.

828 F.2d 221 (1987)

Donald E. CLARK; Peggy S. Clark, Plaintiffs-Appellees, v. COMMISSIONER OF INTERNAL REVENUE, Defendant-Appellant.

United States Court of Appeals, Fourth Circuit.

Decided September 4, 1987.

Attorney(s) appearing for the Case

Ernest Joseph Brown, Tax Div., Dept. of Justice (Roger M. Olsen, Asst. Atty. Gen., Michael L. Paup, Tax Div., Dept. of Justice, on brief) for defendant-appellant.

Daniel Barry Rosenbaum (Walter B. Slocombe, Caplin & Drysdale, Chartered, on brief) for plaintiffs-appellees.

Before HALL and WILKINSON, Circuit Judges, and SMALKIN, United States District Judge for the District of Maryland, sitting by designation.

WILKINSON, Circuit Judge:

In April 1979, Donald Clark sold his company to N.L. Industries for 300,000 shares of N.L. stock and $3,250,000 in a transaction that qualified as a reorganization. The issue in this case is whether the cash payment, commonly called boot, should be taxed as a capital gain or as ordinary income. The Commissioner treated the boot as ordinary income, characterizing it as a dividend paid by Clark's company immediately before the reorganization...

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