
    Susan P. Emery, Petitioner, v. Commissioner of Internal Revenue, Respondent.
    Docket No. 21763.
    Promulgated September 20, 1951.
    
      Glarenee D. Phillips, Esq., for the petitioner.
    
      Wilford E. Payne, Esq., for the respondent.
   OPINION.

Van Fossan, Judge:

The parties are in agreement that petitioner sustained a loss and as to the amount thereof. The only question now presented is whether the loss is an ordinary loss deductible in full or a capital loss, the deductibility of which is limited by section 117. The answer depends upon whether the property is excluded from the category of capital assets by section 117 (a) (1) of the Code as “* * * real property used in the trade or business of the taxpayer.”

Our ultimate finding of fact is dispositive of the case. The petitioner had the burden of proving that the property was used in taxpayer’s trade or business. In this, she has failed and the affirmation of the respondent’s holding automatically follows. No useful purpose will be served by a recital or discussion of the facts. Suffice it to state that the facts do not establish the contention on which the petitioner’s case rests. The property in question is, therefore, included in the category of capital assets under section 117 (a) (1), I. R. C., and the loss is not deductible as an ordinary loss.

It is unnecessary to consider other questions which might be discussed, such as the respective rights of the trust and the beneficiaries thereunder.

Decision will be entered for the respondent.  