Gene Cluck and Vivian Cluck v. Commissioner of Internal Revenue

PER CURIAM.

This case, in its essential facts, brings taxpayers and Commissioner into a contest in which each of them takes a position exactly opposite to that assumed by the taxpayer and Commissioner in Carter v. Commissioner of Internal Revenue, 5 Cir., 257 F.2d 595 . Having decided that on such similar facts the sale of the breeding herd in Carter was the sale of Section 117(j), 26 U.S.C.A. § 117 (j) property we also hold here that the sale of the breeding herd at a loss did not produce a loss “attributable to the operation of a trade or business regularly carried on by the taxpayer” within the terms of the loss carry-back provisions of the Internal Revenue Code of 1939.

The decision of the Tax Court is affirmed on the opinion of the Tax Court, 29 T.C. 7 , and on the authority of Carter v. Commissioner of Internal Revenue, supra.