Beverly B. Bistline v. United States

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…