261 F2d 267 Cluck v. Commissioner of Internal Revenue

261 F.2d 267

Gene CLUCK and Vivian Cluck, Petitioners,
v.
COMMISSIONER OF INTERNAL REVENUE, Respondent.

No. 17122.

United States Court of Appeals Fifth Circuit.

November 19, 1958.

Arthur Glover, Amarillo, Tex., for petitioners.

Abbott M. Sellers, Carolyn R. Just, A. F. Prescott, Attys., Dept. of Justice, Washington, D. C., Charles O. Johnson, Sp. Atty., Arch M. Cantrall, Chief Counsel, I. R. S., Washington, D. C., Lee A. Jackson, Atty., Dept. of Justice, Washington, D. C., Charles K. Rice, Asst. Atty. Gen., for respondent.

Before TUTTLE, JONES and BROWN, Circuit Judges.

PER CURIAM.

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1

This case, in its essential facts, brings taxpayers and Commissioner into a contest in which each of them takes a position exactly opposite to that assumed by the taxpayer and Commissioner in Carter v. Commissioner of Internal Revenue, 5 Cir., 257 F.2d 595. Having decided that on such similar facts the sale of the breeding herd in Carter was the sale of Section 117(j), 26 U.S.C.A. § 117 (j) property we also hold here that the sale of the breeding herd at a loss did not produce a loss "attributable to the operation of a trade or business regularly carried on by the taxpayer" within the terms of the loss carry-back provisions of the Internal Revenue Code of 1939.

2

The decision of the Tax Court is affirmed on the opinion of the Tax Court, 29 T.C. 7, and on the authority of Carter v. Commissioner of Internal Revenue, supra.