THOMSEN, Chief Judge.
In this action for the recovery of income taxes alleged to have been wrongfully assessed, the issue is whether taxpayer's gains from the sale of real estate in 1958 and 1959 should be treated as capital gains or as ordinary income. Taxpayer contends that the several parcels of real estate sold during those years were "capital assets", as defined in sec. 1221, I.R.C. of 1954, 26 U.S.C.A. § 1221, which provides:
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