Glenn H. and Diane J. Flood - Page 16




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          v. Commissioner, 77 T.C. 582, 598 (1981); Andrew v. Commissioner,           
          54 T.C. 239, 248 (1970); sec. 1.166-2(a), Income Tax Regs.                  
               Petitioners argue that the loans became worthless in 1992              
          when the auction was destroyed by fire.  Petitioner argues that             
          the auction was his father’s sole source of income, the                     
          destruction of which resulted in an inability to repay the                  
          advances.  It is not entirely clear from the record who owned the           
          auction at the time of the fire.  It appears from the record,               
          however, that the auction was owned entirely by petitioner’s                
          father and/or stepmother.                                                   
               Although legal action by petitioner against his father is              
          not required to show his father’s inability to repay the                    
          advances, in the absence of such action, petitioner must still              
          show that legal action would not have resulted in the                       
          satisfaction of the debt.  See sec. 1.166-2(b), Income Tax Regs.            
          Petitioner’s father owns the land upon which FAP is located.                
          Schedule D, Capital Gains and Losses, of John and Willene Flood’s           
          1992 income tax return shows the sale of a building for a gain of           
          $30,000, 2 weeks before the auction fire.  Additionally, Schedule           
          E, Supplemental Income and Loss, of the 1992 income tax return              
          shows that the couple owned rental property at the time of the              
          fire.                                                                       
               Accordingly, petitioners have failed to show that the                  
          advances were loans.  Even if petitioners had shown that the                
          advances were debt within the meaning of section 166, petitioners           





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