Patrick E. Catalano - Page 11




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          appropriately deemed to have paid the interest in the disposition           
          of his residence.                                                           
               Respondent contends that our holding in Lackey v.                      
          Commissioner, T.C. Memo. 1977-213, requires that the fair market            
          value of foreclosed property exceed the principal indebtedness              
          before any amount can be allocated to interest.  In Lackey, the             
          taxpayer claimed a deduction for interest paid on the disposition           
          in foreclosure of property he conceded had a value lower than the           
          outstanding indebtedness.  The taxpayer argued that he was                  
          nevertheless entitled to an interest deduction because State law            
          required that partial payments on indebtedness be allocated first           
          to interest and then to principal.  We denied the deduction based           
          on precedent holding the “interest first” rule to be inapplicable           
          where the debtor is insolvent.  Respondent’s reliance on Lackey             
          is nevertheless misplaced because the case involved a recourse              
          loan,9 and thus was governed by different principles of                     
          realization.                                                                
               More relevant to our analysis is our holding in Harris v.              
          Commissioner, T.C. Memo. 1975-125, affd. without published                  
          opinion 554 F.2d 1068 (9th Cir. 1977), which, like the                      
          transaction at issue, involved the deemed payment of interest in            



               9We stated in Lackey v. Commissioner, T.C. Memo 1977-213,              
          that “there was little likelihood that * * * [the lender] would             
          receive any payments from petitioners other than the proceeds               
          from the foreclosure sales.”  (Emphasis added.) Had the debt been           
          nonrecourse, the bank would have had no opportunity to seek                 
          payments other than from the proceeds of the foreclosure sales.             



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