Thomas K. and Billie J. Scallen - Page 22




                                       - 22 -                                         
                                       OPINION                                        
               Section 166(a) allows as a deduction any debt which becomes            
          worthless within the taxable year.  However, section 166(a) is              
          not applicable to any nonbusiness debt, and, where any                      
          nonbusiness debt becomes worthless within the taxable year, the             
          loss resulting therefrom shall be considered a loss from the sale           
          or exchange of a capital asset held for not more than 1 year.               
          Sec. 166(d)(1).  A nonbusiness debt means a debt other than:  (1)           
          A debt created or acquired (as the case may be) in connection               
          with a trade or business of the taxpayer; or (2) a debt the loss            
          from the worthlessness of which is incurred in the taxpayer’s               
          trade or business.  Sec. 166(d)(2).  Business bad debts generally           
          include payments of principal or interest made by a taxpayer in             
          discharge of part or all of his obligation under a guaranty                 
          agreement entered into in the course of a trade or business of              
          the taxpayer.  Sec. 1.166-9(a), Income Tax Regs.  The burden is             
          on the taxpayer to show his entitlement to a business bad debt              
          deduction.18  Rule 142(a); Litwin v. United States, 983 F.2d 997,           



               17(...continued)                                                       
          and a net operating loss of $249,149 for 1993 (for which he is              
          entitled to net operating loss carryback deductions in 1990,                
          1991, and/or 1992, or to net operating loss carryforward                    
          deductions for years subsequent to 1993).                                   
               18Petitioners do not argue the applicability of sec.                   
          7491(a), and the record does not otherwise show whether the                 
          examination was commenced after the effective date of that Code             
          section.  We find sec. 7491(a) is not applicable to this case.              





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