McGah

This case has been here before, Mc-Gah v. Commissioner of Internal Revenue, 9 Cir., 1952, 193 F.2d 662 . We vacated the decisions and remanded with instructions to the Tax Court to make further findings and enter such decision as it deemed proper. We held in the previous appeal that in order to establish a taxpayer’s purpose of holding property for sale under section 117(j) of the Internal Revenue ■ Code, 26 U.S.C.A. § 117 (j) it is necessary for the Tax Court to find the existence of such purpose prior to sale and not merely at the time of sale.

Pui’suant to our remand, the Tax Court, on March 12, 1952, entered its supplemental findings and opinion. No additional evidence was taken. On June 5, 1952, taxpayers filed a petition for review. Respondent asserts that the petition for review was not in time, hence this court is without jurisdiction to entertain this appeal. It is argued that the 30 day limitation contained in section 1140(c) (2) of the Internal Revenue Code, 26 U.S.C.A. § 1140 (c) (2) is applicable. We do not agree. That provision is not operative where a rehearing is granted, in which event the three month limitation contained in §§ 1140(d) and 1142 of the Internal…