- 10 - evidence indicates that John paid it. He was contractually obligated to do so and, furthermore, he states that he paid the mortgage interest in his letter to Sid asking for the return of the property. Consequently, petitioners are not entitled to deduct $11,369 of mortgage interest on their 1988 return. A taxpayer with bare legal title to property, but no capital investment or economic interest in it, cannot claim depreciation. Estate of Franklin v. Commissioner, 544 F.2d 1045 (9th Cir. 1976) affg. 64 T.C. 752 (1975); Helvering v. F&R Lazarus & Co., 308 U.S. 252 (1939). The taxpayer entitled to the depreciation deduction is the one who suffers the economic loss of his investment by virtue of the wear and tear or exhaustion of the property--the one who has the economic benefits and burdens of ownership. Frank Lyon Co. v. United States, 435 U.S. 561 (1978); Leahy v. Commissioner, 87 T.C. 56 (1986). The Exchange Agreement between petitioners and John transferred the benefits and burdens of ownership to John. Petitioners received the full fair market value for the property from John. He agreed to pay back taxes, forgave a $9,340 debt that petitioners owed him, and assumed the mortgage. True, petitioners remained liable on the Jack Rice mortgage, but John promised them that he would repay it. Only if John failed would petitioners be forced to pay. Hence, petitioners' position became tantamount to that of a guarantor rather than primaryPage: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Next
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