Franklin W. Briggs - Page 39




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         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).                                  





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