316 F2d 473 Weiner v. Commissioner of Internal Revenue

316 F.2d 473

Martin WEINER and Tillie Weiner, Petitioners,

No. 14151.

United States Court of Appeals Third Circuit.

Argued March 4, 1963.

Decided April 22, 1963.

Marvin Lyons, New York City (James A. Levitan, Benjamin Nadel, New York City, on the brief), for petitioners.

Crombie J. D. Garrett, Dept. of Justice, Tax Division, Washington, D. C. (Louis F. Oberdorfer, Asst. Atty. Gen., Lee A. Jackson, David O. Walter, Attorneys, Dept. of Justice, Washington, D. C., on the brief), for respondent.

Before BIGGS, Chief Judge, and KALODNER and FORMAN, Circuit Judges.


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We here review an unreported decision of the Tax Court of the United States. The substance of the issue presented is whether the Tax Court erred in holding that gain on the disposition of the Regency Textiles, Inc. note was taxable as ordinary income or was entitled to treatment as a long-term capital gain under Section 1222(3) of the Internal Revenue Code of 1954, 26 U.S.C.A. § 1222(3). The essence of the question is whether there was or was not a bona fide sale or exchange of the note which requires recognition for tax purposes. The Tax Court, in a well reasoned opinion by Judge Atkins, answered this question in the negative and concluded therefore that the gain was taxable as ordinary income. Upon review of the facts and of the law we can perceive no error in the decision of the Tax Court. Accordingly, it will be affirmed.