Wayne A. McFadden - Page 18




                                       - 18 -                                         
          Stephanie would have received had she sold the property for cash            
          subject to the Great Western first deed of trust and paid the               
          cash to petitioner.  As discussed below, petitioner is entitled             
          to treat the excess of the Atascadero loan, $131,828, as a                  
          worthless nonbusiness debt under section 166.                               
               Section 166 allows a deduction for any debt that becomes               
          worthless within the taxable year.  Sec. 166(a)(1).  The parties            
          agree that the Atascadero loan was a nonbusiness debt.  A                   
          nonbusiness debt is any debt that is not created or acquired in             
          connection with a trade or business of the taxpayer.  Sec.                  
          166(d)(2)(A).  In the case of nonbusiness debt, the deduction is            
          treated as a loss from the sale or exchange of a capital asset              
          held for not more than 1 year.  Sec. 166(d)(1)(B).                          
               Taxpayers seeking to avail themselves of the so-called bad             
          debt deduction must prove the existence of a bona fide debt, as             
          defined by section 1.166-1(c), Income Tax Regs., and that the               
          debt became wholly worthless during the tax year in which it was            
          deducted, sec. 1.166-5(a)(2), Income Tax Regs.                              
               On reply brief, respondent insinuates that the loan payments           
          from petitioner’s profit-sharing plan to Stephanie and David were           
          gifts rather than bona fide debt.  This position is diametrically           
          opposed to the characterization respondent has given the payments           
          since 1994.  Throughout the course of the examination of the                
          profit-sharing plan and trust, the settlement discussions                   






Page:  Previous  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  Next

Last modified: May 25, 2011