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the inception of the net recovery buyout recapture agreement,
then in accordance with the terms of that agreement, petitioners
could be required to repay part or all of the $177,722 written
off by FmHA. If petitioners chose not to dispose of their
property, then, of course, nothing further would be due.
Petitioners’ obligation was thus “highly contingent” in every
sense of the word. This state of affairs fits perfectly within
the precept formulated in Zappo v. Commissioner, supra, that a
highly contingent obligation will not be treated in pari materia
with a more conventional counterpart.
Petitioners’ initial debt to FmHA, the “conventional
counterpart” in this case, was fixed in amount, bore a stated
rate of interest, and required periodic payments. In contrast,
petitioners’ liability under the recapture agreement had no
certain amount, was not interest bearing, and mandated no
definite payments. An enforceable financial obligation may in
fact never materialize at all. Faced with these differences, we
cannot reasonably view the latter alleged debt as a mere
substitute for the former.
We are convinced that the rationale of United States v.
Kirby Lumber Co., 284 U.S. 1 (1931), is particularly applicable
here where the recapture agreement leaves petitioners in complete
control of their assets and free to arrange their affairs so that
none of their property’s value need ever be delivered to FmHA.
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