- 6 - payment to Agway is held to represent a bad debt, it is a nonbusiness bad debt deductible only as a short-term capital loss pursuant to section 166(d). The burden of proof is on petitioners. Rule 142(a); Welch v. Helvering, 290 U.S. 111, 114 (1933). That burden is not lessened in a fully stipulated case. Borchers v. Commissioner, 95 T.C. 82, 91 (1990), affd. 943 F.2d 22 (8th Cir. 1991). Petitioners rely heavily on Putnam v. Commissioner, 352 U.S. 82 (1956), citing it for the proposition that payments by an individual on a guarantee of corporate debt which are not then repaid to the individual because the obligation to repay is worthless give rise, as a matter of law, to bad debt deductions, pointing to the following: The familiar rule is that, instanter upon the payment by the guarantor of the debt, the debtor's obligation to the creditor becomes an obligation to the guarantor, not a new debt, but, by subrogation, the result of the shift of the original debt from the creditor to the guarantor who steps into the creditor's shoes. Thus, the loss sustained by the guarantor unable to recover from the debtor is by its very nature a loss from the worthlessness of a debt. This has been consistently recognized in the administrative and the judicial construction of the Internal Revenue laws which, until the decisions of the Courts of Appeals in conflict with the decision below, have always treated guarantors' losses as bad debt losses. * * * [Id. at 85-86; fn. refs. omitted.] This exact argument was raised and rejected in Casco Bank & Trust Co. v. United States, 544 F.2d 528, 533-534 (1st Cir. 1976). First, as the Court of Appeals for the First Circuit pointed out,Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 Next
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