Mann Construction Co., Inc. - Page 12




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          invalid, or unenforceable Mark's agreement to repay petitioner's            
          advances.                                                                   
               Of course, we must still consider whether Mark Mann's                  
          obligation to repay petitioner was contingent, on the basis of              
          the evidence other than petitioner's stipulation.                           
               Respondent is correct that if a borrower promises to repay             
          only from a specified fund, the borrower's obligation will                  
          generally be treated as contingent, and no bad debt deduction               
          will be allowed.  See Ewing v. Commissioner, 20 T.C. 216, 229               
          (1953) (payment only from operating profits), affd. on other                
          grounds 213 F.2d 438 (2d Cir. 1954); Clark v. Commissioner, supra           
          (payment only from dividends on certain stock); 17A Am. Jur. 2d             
          Contracts sec. 496 (1991) (promise to pay out of a specified fund           
          generally renders contract conditional).  But cf. Clay Drilling             
          Co. v. Commissioner, 6 T.C. 324 (1946) (bad debt deduction                  
          allowed even though debt was repayable only from future                     
          commissions to be earned by debtor).  An obligation to repay will           
          also generally be found to be contingent if the borrower promises           
          to repay only when financially able to do so.  See Zimmerman v.             
          United States, 318 F.2d 611 (9th Cir. 1963) (no valid debt                  
          existed--and no bad debt deduction was proper--where repayment              
          was to be made only when the borrower could carry itself                    
          financially, and only in whatever amount could be paid without              
          jeopardizing the borrower).                                                 





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