- 39 - CB&T paid Key West Polo $460,000 to discharge Key West Polo’s claim against Towers Construction relating to prior advances. CB&T became subrogated to the rights of Key West Polo and had a right of reimbursement from Towers Construction.28 Thus, CB&T stood in the shoes of Key West Polo, and Towers Construction’s liability to repay CB&T was akin to its liability to repay Key West Polo its advances. Clearly, liability to repay an advance, particularly one never taken into gross income in the first instance, does not give rise to a deductible expense under section 162 or otherwise.29 See Crawford v. Commissioner, 11 B.T.A. 1299, 1302 (1928). In light of our disposition of this issue, we need not reach respondent’s alternative argument that Towers Construction’s 28 Applicable Florida law recognizes two types of subrogation–-conventional subrogation, which arises from contractual rights between parties, and equitable or legal subrogation, which arises from legal consequences of the acts and relationships of the parties. See Dade County Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638, 646 (Fla. 1999). Although the distinction is not significant for present purposes, it appears most likely that conventional subrogation arose from the contractual rights between CB&T and Towers Construction regarding the letter of credit. 29 The record does not suggest that Towers Construction or petitioners ever included the $460,000 advance in gross income. Petitioners have not raised, and we do not reach, any issue as to whether Towers Construction’s liability to CB&T should be deductible as an amount previously taken into gross income by Towers Construction under a claim of right when it received the advances from Key West Polo. Cf. sec. 1341(a)(1) (in computing tax where the taxpayer repays amounts held under claim of right, the remedial mechanism of sec. 1341 applies only if the item was included in gross income for prior years).Page: Previous 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 Next
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