Joseph Nachman - Page 22

                                               - 22 -                                                  
            662 (9th Cir. 1960), affg. 31 T.C. 938 (1959).  This could be the                          
            case if it appears that the recipient of the transfer treats an                            
            obligation to repay the transfer as less bona fide than its other                          
            obligations, such as, for example, if the recipient of the funds                           
            paid other expenses or made other payments to the person                                   
            providing the funds while not repaying the advance at issue.                               
            Swirl did not pay petitioner the principal on the notes, and New                           
            Swirl did not assume petitioner's $350,000 advance as a                                    
            liability, even though it bought Swirl’s assets and assumed most                           
            of its liabilities.  This factor suggests that the transfer was                            
            equity.                                                                                    
                  5.    Conclusion                                                                     
                  While no single factor controls, according to the                                    
            preponderance of the evidence, we hold that petitioner's $350,000                          
            advance was debt.                                                                          
            B.    The Amount of Petitioner’s Bad Debt Deduction for 19884                              
                  1.    Petitioner's Calculation                                                       
                  Elias calculated petitioner's 1988 bad debt deduction by                             
            netting the face amounts of the facility purchase mortgage, the                            
            May 1985 loan, and the $350,000 October 1986 loan.  Elias first                            
            subtracted $270,000, the amount of the May 1985 loan which Swirl                           
            was required to pay petitioner, from $312,500, the face amount of                          
            the facility purchase mortgage which petitioner owed to Swirl,                             

                  4 The parties agree that if the advance is debt it became                            
            worthless in 1988.                                                                         




Page:  Previous  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  Next

Last modified: May 25, 2011