Gamble v. Commissioner, 242 F.2d 586 (C.A. 5, 1957), affirming T.c. Memo. 1955-289; Consolidated Naval Stores Co. v. Fahs, 227 F.2d 923 (C.A. 5, 1955); Smith v. Commissioner, 232 F.2d 142 (C.A. 5, 1956), reversing T.C. Memo. 1955-35. These factors were enumerated in W. T. Thrift, Sr., 15 T.C. 366, 369 (1950): The governing considerations have been the purpose or reason for the taxpayer's acquisition of the property and in disposing of it, the continuity of sales or sales related activity over a period of time; the number, frequency, and substantially of sales, and the extent to which the owner or his agents engaged in sales activities by developing or improving the property, soliciting customers, and advertising. * * *

        The Government relies principally on Jacobs v. Commissioner, 9 Cir., 1955, 224 F.2d 412, for the proposition that in order to employ the instalment method, the taxpayer must make a timely election, normally on his tax return for the year in which the sale occurred. The Government also relies upon Pacific National Co. v. Welch, 304 U.S. 191, 195, 58 S.Ct. 857, 82 L.Ed. 1282; Ireland v. Commissioner, 32 T.C. 994; Briarly v. Commissioner, 29 B.T.A. 256; Vischia v. Commissioner, 26 T.C. 1027; Commons v. Commissioner, 20 T.C. 900; Cedar Valley Distillery, Inc. v. Commissioner, 16 T.C. 870; and Thrift v. Commissioner, 15 T.C. 366.         Treasury Regulation 1.453-8(a)(2) of the 1954 Code, which reads in part:

The tests include the purpose or reason for the taxpayer's acquisition of the property and in disposing of it; the continuity of sales or sales-related activity over a period of time; the number and frequency of sales; the extent to which the taxpayer or his agents have engaged in sales activities by developing or improving the property, soliciting customers, and advertising; and the substantiality of the sales when compared to other sources of taxpayer's income. Boomhower v. United States, D.C., 74 F.Supp. 997; Martin Dressen, 17 T.C. 1443; W. T. Thrift, Sr., 15 T.C. 366. However, as this Court pointed out in the Thrift case, 'No one of these tests can be regarded as determinative but the question must be viewed in the light of all pertinent factors and particularly the facts of the individual case.

The fact that 102 houses were sold within a period of 14 months, at an average price of some $5,200 to $5,400, shows clearly the frequency, continuity, and substantiality of the transactions. In an exhaustive and able brief, taxpayer contends that this was no more than a conversion or liquidation of an investment, citing Delsing v. U.S., 186 F.2d 59, from the 5th Circuit, and Julia K. Robertson (§ 49,234 P-H Memo T.C.); H.D. Lewis (§ 52,022 P-H Memo T.C.); Adam Schantz, Sr. Corp. (§ 52,122 P-H Memo T.C.); Farry v. Commissioner, 13 T.C. 8; and Thrift v. Commissioner, 15 T.C. 366, from the Tax Court. Some of these are very close in point of fact, notably Delsing and Robertson, where houses were constructed for rent under the F.H.A. program.

See United States v. Winthrop, 417 F.2d 905, 910 (5th Cir. 1969). However, as we stated in Thrift v. Commissioner, 15 T.C. 366, 369 (1950), ‘No one of these tests can be regarded as determinative but the question must be viewed in the light of all pertinent factors and particularly the facts of the individual case.‘

None of the above factors are conclusive standing alone, but rather all of the factors taken as a whole govern. W. T. Thrift, Sr., 15 T.C. 366 (1950). In this case, the respondent has challenged two sales of real estate by petitioner in 1968 and two

Whether the income at issue arose from the operation of a trade or business or from a series of investments is to be determined by a consideration of all the surrounding circumstances. W. T. Thrift, Sr., 15 T.C. 366 (1950). Several guidelines are generally utilized in order to determine in which type of activity the taxpayer was engaged.

These factors must be viewed in light of all the facts; no single factor is controlling. W. T. Thrift, Sr., 15 T.C. 366; Boomhower v. United States, 74 F.Supp. 997. Moreover, while the purpose for the acquisition must be given consideration, intent is subject to change, and the determining factor is the purpose for which the property is held at the time of sale. Carl Marks & Co., 12 T.C. 1196; Richards v. Commissioner, 81 F.2d 369; Mauldin v. Commissioner, 195 F.2d 714; Raymond Bauschard, 31 T.C. 910, 917, affd. 279 F.2d 115.

This poses a pure question of fact. W. T. Thrift, Sr., 15 T.C. 366 (1950). Faced with this question on innumerable occasions, the courts have adopted several well-recognized tests.

This poses a pure question of fact. W. T. Thrift, Sr., 15 T.C. 366 (1950). Faced with this question on innumerable occasions, the courts have adopted several well-recognized tests.