Wayne A. McFadden - Page 16




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          encumbered with a senior lien.  Like the cited cases,                       
          petitioner’s basis in the Atascadero property is its fair market            
          value, but the existence of the Great Western mortgage requires             
          additional explanation as to how we arrive at the fair market               
          value basis.                                                                
               In the case at hand, petitioner’s recourse debt, owed him by           
          Stephanie and David on the Atascadero loan, was satisfied to the            
          extent of $38,543, the amount by which the property’s fair market           
          value--$207,500--exceeded the Great Western note secured by the             
          first deed of trust--$168,957--and is a “cost” of the property to           
          petitioner.                                                                 
               In addition, petitioner took the property subject to the               
          Great Western note secured by the first deed of trust, which had            
          an outstanding balance of $168,957 on the date petitioner                   
          acquired the property.  A purchaser’s basis under section 1012              
          includes genuine indebtedness to which the property is subject.             
          Estate of Franklin v. Commissioner, 544 F.2d 1045, 1049 (9th Cir.           
          1976), affg. 64 T.C. 752 (1975); Bertoli v. Commissioner, 103               
          T.C. 501, 515 (1994).  The genuine nature of the Great Western              
          loan is not in dispute; petitioner respected the debt to which              
          the property was subject and made payments on the Great Western             
          loan to protect his interest in the Atascadero property.  The               
          outstanding balance on the Great Western loan–-$168,957–-is                 
          included in petitioner’s cost basis.                                        






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