- 31 -
note were materially altered, "and the payment [under that note]
was changed from a balloon payment to a payment of interest
only." We conclude that petitioners have failed in their attempt
to distinguish Weiss v. Commissioner, supra, from the present
case.6
On the record before us, we find that petitioners have
failed to carry their burden of showing that Mr. McDaniel was
discharged in 1993 from his guaranty of the Second Street loan
under section 620.735(2).
In contrast to the course of dealings between Mr. Palermo
and NationsBank/Amresco during 1993, their course of dealings
during 1994 supports respondent's position that Mr. McDaniel was
released in 1994 from his guaranty of the Second Street loan.
The Bank notified Mr. Palermo in the April 21, 1994 letter that
the 1989 note was in default. Mr. McDaniel wrote to NationsBank
on April 26, 1994, in order to request on behalf of Second Street
that the Bank forbear from taking any action with respect to that
default until June 15, 1994. Mr. Palermo was able to obtain
6 Even if petitioners had established the distinction that
they allege between the instant case and Weiss v. Commissioner,
956 F.2d 242 (11th Cir. 1992), vacating and remanding T.C. Memo.
1990-492, we would find any such distinction to be irrelevant to
our determination of whether it could be inferred from the course
of dealings during 1993 between Mr. Palermo and NationsBank/
Amresco that Mr. McDaniel was discharged in that year from his
guaranty of the 1989 note.
Page: Previous 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 NextLast modified: May 25, 2011