Bernard B. Carter (B. B. Carter) and Tommie Velma Carter, Husband and Wife v. Commissioner of Internal Revenue

TUTTLE, Circuit Judge.

The principal question presented on this petition to review the decision of the Tax Court is whether the court erred in holding that the proceeds of a sale of 386 head of heifers were taxable to petitioner as ordinary income rather than as gain from the sale of a capital asset. The correct answer to that question by the Tax Court depends on whether the cattle in question were a “breeding herd” which thus were “used in the trade or business” or were cattle “held primarily for sale in the ordinary course” of petitioner’s business of buying, feeding and selling cattle.

Recogn…