Louis Rabiner and Lena Rabiner, Husband and Wife v. Ernest W. Bacon, Director of Internal Revenue

MEHAFFY, Circuit Judge.

Appellants, taxpayer, brought suit in the District Court seeking refund of a portion of income taxes paid for the fiscal years 1960, 1961 and 1962. 1 Taxpayer contends that income derived from receipts of rents under a contract whereby Davis Brothers Construction Company could excavate sand, gravel and dirt from his property was treated as ordinary income, subject to depletion allowance, when said income should have been treated as capital gains. The document ran for five years and taxpayer’s income from that property was solely dependent upon production during that…