Ordinary vs Capital: How facts and circumstances play a crucial role in the taxability of the sale of land

One issue that has been heavily litigated in tax court is whether gain from the sale of land qualifies for capital gain treatment. While the results of cases dealing with this issue have been wide-ranging and sometimes contradictory, it is clear that the specific facts and circumstances in each case play a crucial role in determining the outcome. In order for a sale to result in a capital gain, the underlying asset must meet the definition of a capital asset. However, rather than providing a direct definition of a capital asset, the Internal Revenue Code defines the term by exclusion stating that an asset is not considered a capital asset if it is “held by the taxpayer primarily for the sale to customers in the ordinary course of the taxpayer’s trade or business.” (Section 1221(a)(1)). 



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