Sylvia Osterbauer and Estate of Joseph Osterbauer, Deceased, Sylvia Osterbauer, Personal Representative - Page 8

                                        - 8 -                                         
          failing to pay off the debt would have soured their relationship            
          with the Bank which held the mortgage on some of their real                 
          estate projects.  Petitioner and decedent presented no evidence             
          to support this claim other than petitioner's testimony to that             
          effect.  Moreover, while petitioner and decedent contend that               
          forcing the bank to foreclose on its collateral, the Cessna                 
          airplane, would have soured their relationship with the Bank, the           
          parties have stipulated that the debt was in fact fully paid with           
          the proceeds of the sale of the Cessna plane.  Petitioner and               
          decedent presented no evidence that, had the Bank been forced to            
          foreclose on this debt, their real estate business would have               
          been adversely affected.  There is no evidence to support                   
          petitioner's and decedent's contention that the Bank would have             
          called all of petitioner's and decedent's outstanding loans if              
          the Bank had foreclosed on this loan.                                       
               Petitioners contend on brief that the size of their invest-            
          ment in International Mining is a factor tending to show that               
          their dominant motive in guaranteeing the debt was a business               
          one.  Petitioners' reliance on Litwin v. United States, 983 F.2d            
          997 (10th Cir. 1993), and Kelson v. United States, 503 F.2d 1291            
          (10th Cir. 1974), to support their contention that the size of              
          petitioner's and decedent's investment is persuasive evidence of            
          petitioners' motive is misplaced.  Petitioners assert that, where           
          the investment is relatively small, a dominant business motive is           
          more likely.  Petitioners appear to arrive at this conclusion               




Page:  Previous  1  2  3  4  5  6  7  8  9  10  Next

Last modified: May 25, 2011