Philip A. Sellers - Page 9




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          of which $169,331 represented a carryover of the 1993 net                   
          operating loss.                                                             
               In the notice of deficiency for taxable year 1993,                     
          respondent disallowed petitioners’ claimed bad debt deduction               
          “because it has not been established that any amount of bad debts           
          existed in fact and in law.”  Similarly, for taxable year 1995,             
          respondent disallowed the $169,331 claimed net operating loss               
          carryover “because it has been determined that a net operating              
          loss did not exist in the year that caused the carryforward.”               
                                       OPINION                                        
          A.  The Parties’ Contentions                                                
               Petitioners argue that the advances to Gandy’s were loans              
          that petitioner made in the course of his lending business, that            
          the loans became worthless in 1993, and that they are properly              
          deductible either under section 166 as business bad debts or                
          under section 165 as ordinary losses incurred in a trade or                 
          business.                                                                   
               Respondent agrees that petitioner was in the business of               
          lending money but argues that the advances in issue represent               
          contributions to Gandy’s capital rather than debt.  At trial and            
          on brief, respondent concedes that petitioners are entitled to              
          deduct the losses under section 165 but only as long-term capital           
          losses, pursuant to section 165(f).                                         








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