(dissenting) .
Section 117(j) of the Internal Revenue Code of 1939, as amended, 26 U.S.C. 117 (j), accords capital gain treatment to “property used in the trade or business” unless the property is inventory or “held * * * for sale to customers”. The Supreme Court recently in construing this section stated “Since this section is an exception from the normal tax * * * j-jy must be narrowly applied and its exclusions interpreted broadly.” 1 Our Saltzman v. Commissioner, 3 Cir., 1955, 227 F.2d 49 is very much in point and does, I think, govern here. By any and all of the established criteria, i. e. purpose of acquisition, improvements made on the land, number of sales, advertising and selling efforts, the “busyness” test,2 reinvestment of proceeds, related activities, this income was ordinary profit of the taxpayer’s building and real estate business.
Such conclusion has the solid support of the pertinent decisional law. Cohn v. Commissioner, 9 Cir., 1955, 226 F.2d 22; Rollingwood Corp. v. Commissioner, 9 Cir., 1951, 190 F.2d 263; Home Co. v. Commissioner, 10 Cir., 1954, 212 F.2d 637; King v. Commissioner, 5 Cir., 1951, 189 F.2d 122, certiorari denied 342 U.S. 829, 72 S.Ct 54, 96 L.Ed. 627 ;3 Galena Oaks Corp. v. Scofield, 5 Cir., 1954, 218 F.2d 217; Winnick v. Commissioner, 6 Cir., 1952, 199 F.2d 374; Id., 21 T.C. 1029, affirmed, 6 Cir., 1955, 223 F.2d 266; Dougherty v. Commissioner, 6 Cir., 1954, 216 F.2d 110; involve substantially similar fact problems and clearly uphold the Tax Court. In Goldberg v. Commissioner, 5 Cir., 1955, 223 F.2d 709, 713, “[t]here was absolutely no evidence of any promotional activity * * * ”; there was no advertising; no salesmen; no commissions paid; though price ceilings had been removed, the houses were sold to tenants at the F.H.A. prices; neither the taxpayer nor any of the transferees there had ever before or since been in the business of building and holding houses for sale. In Dillon v. Commissioner, 8 Cir., 1954, 213 F.2d 218, the taxpayer was not in the real estate business and all the sales promotional activity was carried on by an outside real estate company. The same is true of Smith v. Dunn, 1955, 224 F.2d 353, Fifth Circuit (one judge dissenting in part). McGah v. Commissioner, 9 Cir., 1954, 210 F.2d 769 involved a forced partial liquidation, at the behest of a creditor bank. Chandler v. United States, 7 Cir., 1955, 226 F.2d 403 involved a unique fact situation4 and the court gave great weight to the fact that there was no reinvestment of the proceeds in real estate as we have in the present situation. Greenspon v. Commissioner, 8 *172Cir., 1956, 229 F.2d 947, involved sales by liquidating trustees of a pipe business. It is at most only obliquely related to the facts before us; further, there was no extensive advertising or sales promotion.
The circumstance that these properties were not readily salable as investment real estate, reflects back on the purpose for which taxpayer built them. An apartment house is typical investment housing. It is salable as such and capital gain results. But suppose it is divided into 1,000 cooperative apartments, should not the “sale to customers” exclusion deny the favored treatment?
The analogy to a trader in securities is inapposite. Trading in securities for one’s own account, no matter how extensive, is not a business for tax purposes. Real estate operations, however, are taxable as a business. Higgins v. Commissioner, 1941, 312 U.S. 212, 61 S.Ct. 475, 85 L.Ed. 783. This taxpayer’s regular business is buying land, subdividing, building, and selling real estate to consumers or investors. If analogy to the securities field is to be used it is the “underwriter” or “dealer” operation which is comparable to the taxpayer. The “dealer” or “underwriter” may have an investment account and thereby obtain capital gains, but he must conform closely to Section 117 (n) and the regulations thereunder. Even after designation within thirty days of acquisition as an investment, if the security is thereafter ever held for sale to the firm’s customers the favored treatment under Section 117 is lost. A “dealer” cannot buy or underwrite a large block of securities, and, after holding more than six months, sell them piecemeal to his customers and still qualify under Section 117.
In Section 1237 of the Internal Revenue Code of 1954, Congress sharply outlined the sale of realty area. Taxpayer’s facts patently would not qualify for favored treatment under that section. And “ * * * ‘subsequent legislation may be considered to assist in the interpretation of prior legislation upon the same subject.’ * * * ” Great Northern Railway Co. v. United States, 1942, 315 U.S. 262, 277, 62 S.Ct. 529, 535, 86 L.Ed. 836.
The basis of the majority thesis is that property once “used in a trade or business” retains that character regarcP less of whether it is subsequently inventoried or held for sale to customers. Section 117 has not been and cannot be so construed but is the sound source of the well established principle that manner and purpose of holding property may change or be twofold. Richards v. Commissioner, 9 Cir., 1936, 81 F.2d 369, 106 A.L.R. 249; and Cohn v. Commissioner, supra; Rollingwood Corp. v. Commissioner, supra; Home Co. v. Commissioner, supra; King v. Commissioner, supra; Galena Oaks Corp. v. Scofield, supra; Winnick v. Commissioner, supra; Dougherty v. Commissioner, supra.
In selling the houses taxpayer was engaged in business. It should be so taxed. I would therefore affirm the Tax Court on this point also.
. Corn Products Refining Co. v. Commissioner, 1955, 350 U.S. 46, 52, 76 S.Ct. 20, 24.
. Snell v. Commissioner, 5 Cir., 1938, 97 F.2d 891.
. For later year on same facts see Jackson v. King, 5 Cir., 1955, 223 F.2d 714, reversing jury verdict for taxpayer.
. There a Chicago liquidating trust of some three million acres of Texas land after forty years was still liquidating. It was not the conventional builder and realtor, as is the instant taxpayer.