Herbert C. Elliot - Page 10

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          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 dominant                  




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