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BIEDENHARN REALTY CO., INC v. UNITED STATES

No. 73-3690.

526 F.2d 409 (1976)

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

United States Court of Appeals, Fifth Circuit.

January 26, 1976.

Attorney(s) appearing for the Case

Scott P. Crampton, Asst. Atty. Gen., William A. Friedlander, Atty., Tax Div., Dept. of Justice, Washington, D.C., Donald E. Walter, U.S. Atty., Shreveport, La., Fleming T. de Graffenried, Tax Div., Dept. of Justice, Dallas, Tex., William A. Whitledge, Atty., Meyer Rothwacks, Chief, Appellate Sec., Tax Div., Dept. of Justice, Washington, D.C., for defendant-appellant.

Paul K. Kirkpatrick, Jr., John C. Blackman, Nauman S. Scott, III, Monroe, La., for plaintiff-appellee.

J. Robertshaw, Greenville, Miss., amicus curiae.

Before WISDOM, GEWIN, BELL, THORNBERRY, COLEMAN, GOLDBERG, AINSWORTH, GODBOLD, DYER, MORGAN, CLARK, RONEY and GEE, Circuit Judges.

GOLDBERG, Circuit Judge:

The taxpayer-plaintiff, Biedenharn Realty Company, Inc. [Biedenharn], filed suit against the United States in May, 1971, claiming a refund for the tax years 1964, 1965, and 1966. In its original tax returns for the three years, Biedenharn listed profits of $254,409.47 from the sale of 38 residential lots. Taxpayer divided this gain, attributing 60% to ordinary income and 40% to capital gains.1 Later, having determined...

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