Bistline v. United States, 15716.
| Decision Date | 08 August 1958 |
| Docket Number | No. 15716.,15716. |
| Citation | 260 F.2d 77 |
| Parties | Beverly B. BISTLINE, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Bistline & Bistline, F. M. Bistline, R. Don Bistline, Pocatello, Idaho, for appellant.
Charles K. Rice, Asst. Atty. Gen., Thomas N. Chambers, Lee A. Jackson, Robert N. Anderson, Attys., Dept. of Justice, Washington, D. C., Ben Paterson, U. S. Atty., Boise, Idaho, for appellee.
Before POPE, FEE and HAMLIN, Circuit Judges.
There is only one question in this case. The trial court held that within a period of two years there had been a series of sales of real estate, which had been given to taxpayer by her father and which had been held primarily for sale to customers in the ordinary course of business, within the meaning of § 117(a) (1) of the Internal Revenue Code of 1939, 26 U.S.C.A. § 117(a) (1), and that the profit realized should be taxed as ordinary income rather than as capital gain.
This is obviously a question of fact, which ordinarily is governed by the findings of the trial court, unless these are clearly erroneous or unless an appellate court is convinced by an examination of the entire record that a mistake has been committed. Much of the criticism directed at appellate opinions in this field has a sophomoric ring because of the failure of the writers to regard this principle. Upon review of tax cases, the appellate courts are not laying down cabalistic formulae for decision of future cases, but, on the one hand, are either justifying, explaining or fitting facts found by the trial court to the language of the statute. On the other hand, the courts, upon review, are declaring the finding is clearly erroneous or pointing out that a mistake has been made in the application of the facts or that the trial court has misapplied the statute. It is rare that the set of facts and the tone of the circumstances deviate so slightly from another that the decision or the expression of an appellate court as to the one can be used as a binding precedent for the disposal of the other.
Prior to her admission to the practice of law in Idaho, Beverly B. Bistline, in 1949, worked as a legal secretary in the law office of Bistline & Bistline, the law firm of her father, F. M. Bistline. The latter had a similar case before this Court which she presented as an attorney. Her father argued the present case on her behalf before this Court. Her parents transferred by gift deeds approximately two hundred lots of improved and unimproved real estate in and near the City of Pocatello to her on July 1, 1947. At the time of the transfer, Beverly was twenty-four years of age and employed as the business manager of the Pocatello Transit Company, a business owned by her father. These properties had been held by her father for some years. There are facts from which a strong inference can be drawn that F. M. Bistline had held the property for sale in the real estate business. He had sold "quite a little" real property before 1946. Up until the first of 1946, he and his father had owned a real estate brokerage business in Pocatello called the Bistline Realty Company, on the books of which, after Bistline had sold out his interest and the name had been changed, some of the property given to Beverly and some which remained in his ownership on July 1, 1947, was listed for sale, although no prices were set upon the parcels. Bise, Inc., was organized in 1948 as a family holding corporation. There was no real estate held by it, except three lots through foreclosure, which were immediately deeded to Beverly. It had a bank account and kept a set of books. Beverly had a share in this enterprise. Contracts and mortgages were handled by this corporation on money which F. M. and Beverly made from sales of property and from income from the bus company and from other money which F. M. and Beverly had to invest. F. M. and Beverly planned to put in future sales of real property. But this personal holding corporation never completed its organization, because F. M. Bistline "got scared." The reason for not selling some of these properties from 1938 to 1941 was stated by F. M. Bistline. He said: "During some of those years the bus business was awfully good and they had me up in an income tax bracket where I wasn't interested in selling and paying additional tax."
Immediately after the gift of this property, Beverly began to sell portions thereof. The first sale was made within five weeks of the gift. Her...
To continue reading
Request your trial
-
Parkside, Inc. v. C. I. R.
...of the 1939 Code, now § 1221); Los Angeles Extension Co. v. United States, 315 F.2d 1, 2-3 (9th Cir. 1963) (same); Bistline v. United States, 260 F.2d 77, 78 (9th Cir. 1958) (same); United States v. Beard, 260 F.2d 81, 82 (9th Cir. 1958) (same). 4 See also Commissioner v. Duberstein, 363 U.......
-
National Labor Relations Bd. v. Englander Company
... ... 117, AFL-CIO, Respondents ... No. 15832 ... United States Court of Appeals Ninth Circuit ... October 10, 1958 ... As ... ...
-
Austin v. CIR, 16097.
...to customers in the course of his trade or business is a question of fact. Many decisions of this Circuit so testify. Bistline v. United States, 9 Cir., 260 F.2d 77; Bistline v. United States, 9 Cir., 260 F.2d 80; United States v. Beard, 9 Cir., 260 F.2d 81; Pool v. Commissioner, 9 Cir., 25......
-
Jeanese, Inc. v. United States
...of Jeanese's trade or business is a question of fact. United States v. Rosebrook, Cir. 9, 1963, 318 F.2d 316, 319; Bistline v. United States, Cir. 9, 1958, 260 F.2d 77. The cases have repeatedly pointed out that no exact formula or inflexible, dogmatic rule of thumb can be used because each......