- 10 - guaranteed the debt in the course of his or her trade or business, payments on the guaranty are treated as a business bad debt at the time of payment if the guarantor's right of subrogation against the debtor is then worthless. In such a case, the bad debt is an ordinary deduction that may offset ordinary income. Sec. 1.166-9(a), Income Tax Regs. If, on the other hand, the guarantor guaranteed the debt in the course of a transaction entered into by the guarantor for profit, and not in the course of his or her trade or business, the bad debt is a short-term capital loss realized when paid, and the recognition of it is subject to the limitations of section 1211. See Weber v. Commissioner, T.C. Memo. 1994-341; Smartt v. Commissioner, T.C. Memo. 1993-65; Brooks v. Commissioner, T.C. Memo. 1990-259; sec. 1.166-9(b), Income Tax Regs. A guarantor is entitled to a business bad debt deduction for a guaranteed debt that he or she pays when the guarantor proves that: (1) He or she was engaged in a trade or business at the time of the guaranty and (2) the guaranty was proximately related to the conduct of that trade or business. See Putoma Corp. v. Commissioner, 66 T.C. 652 (1976), affd. 601 F.2d 734 (5th Cir. 1979); sec. 1.166-5(b), Income Tax Regs. Whether the guarantor is engaged in a trade or business is factual. United States v. Generes, 405 U.S. 93, 104 (1972); sec. 1.166-5(b), Income Tax Regs. Whether a guaranty is proximately related to the guarantor's trade or business rests on his or her dominantPage: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Next
Last modified: May 25, 2011