Sylvia Osterbauer and Estate of Joseph Osterbauer, Deceased, Sylvia Osterbauer, Personal Representative - Page 7

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          ness, the regulation provides that the discharging payment is a             
          nonbusiness bad debt.  Sec. 1.166-9(b), Income Tax Regs.                    
               The question of whether a debt is a business or nonbusiness            
          bad debt is essentially a question of fact, the resolution of               
          which depends upon whether the debt is "proximately" related to             
          the trade or business of the taxpayer.  Sec. 1.166-5(b)(2),                 
          Income Tax Regs.  In determining whether a bad debt had a                   
          "proximate" relation to the taxpayer's trade or business, the               
          Supreme Court has stated that the proper measure is the dominant            
          motivation of the taxpayer in making the loan.  United States v.            
          Generes, 405 U.S. 93, 103 (1972).  The taxpayer's motive is                 
          assessed at the time the guaranty was made.  Harsha v. United               
          States, 590 F.2d 884 (10th Cir. 1979).                                      
               Petitioner first argues that, had decedent not agreed to               
          secure a loan for International Mining, the corporation would               
          have failed, negatively affecting petitioner's and decedent's               
          business dealings in the community.  Petitioner argues that the             
          dominant motivation in making the loan was to protect the real              
          estate business.  Petitioner offers only her own testimony to               
          support this argument and offers no facts that suggest that, when           
          International Mining did fail, any of the real estate business              
          interests were negatively affected.  Petitioner and decedent next           
          contend that their dominant motivation in lending the money to              
          International Mining was to protect their "good name" in the                
          community where they lived.  Petitioner and decedent argue that             




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