This case came on to be heard on the record and briefs and oral arguments of counsel:

And it appearing that the controlling question in the case is whether the dwelling units sold by petitioner during the years 1946 to 1949, inclusive, were held by petitioner for investment or held by petitioner primarily for sale to its customers in the ordinary course of its business, Internal Revenue Code 1939, 26 U.S.C.A. §§ 117(a) (1), 117(j) (1);

And it appearing that this is a question of fact, Rubino v. Commissioner of Internal Revenue, 9 Cir., 186 F.2d 304, certiorari denied 342 U.S. 814, 72 S.Ct. *190 28, 96 L.Ed. 615; Dougherty v. Commissioner of Internal Revenue, 6 Cir., 216 F.2d 110, 111; Shepherd v. United States of America, 6 Cir., 231 F.2d 445.

And it appearing that the findings of the Tax Court are not clearly erroneous;

It is ordered that the decision of the Tax Court be and it hereby is affirmed.