Opinion
Argued September 8, 1972
Affirmed October 9, 1972
Appeal from Oregon Tax Court.
AFFIRMED.
Paul L. Roess, Coos Bay, argued the cause for appellants. With him on the briefs were McKeown, Newhouse Johansen, Coos Bay.
Alfred B. Thomas, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief was Lee Johnson, Attorney General, Salem.
Before O'CONNELL, Chief Justice, and DENECKE, HOLMAN, TONGUE, HOWELL and BRYSON, Justices.
PER CURIAM.
Plaintiffs claim that certain timber and timberlands which they sold in April and May, 1965, were entitled to capital gains treatment under the Oregon taxing statutes. At the time of the sale ORS 316.408 was in effect and defined capital assets as "property held by the taxpayer (whether or not connected with his trade or business)" but excluded:
"(1) Stock in trade of the taxpayer or other property of a kind which would properly be included in the inventory of the taxpayer if on hand at the close of the tax year, or property held by the taxpayer primarily for sale to customers in the ordinary course of his trade or business.
"(2) Property, used in his trade or business, of a character which is subject to the allowance for depreciation provided in ORS 316.335, or real property used in his trade or business. * * *" (Emphasis supplied.)
The Tax Court held that the timber and timberlands were not entitled to capital gains treatment for the reason they were "real property used in [plaintiffs'] trade or business." Gould v. Dept. of Revenue, 4 OTR 604 (1971).
We reach the same conclusion and adopt the Tax Court's opinion.
Affirmed.