- 80 - We must also reject petitioner’s argument that he is not required to recognize gain from the foreclosure sale, because he was not the borrower of the original loan proceeds and received no benefit therefrom. Petitioner argues: The law is clear that to realize gain based upon market value of property transferred, the transfer must be in consideration of the discharge or reduction of indebtedness. This gain is not realized when the indebtedness is based upon a guaranty and the taxpayer received none of the loan proceeds. Petitioner cites Landreth v. Commissioner, 50 T.C. 803 (1968); Payne v. Commissioner, T.C. Memo. 1998-227, revd. on other grounds 224 F.2d 415 (5th Cir. 2000); and Whitmer v. Commissioner, T.C. Memo. 1996-83, in support of his position. We find those cases distinguishable in that they dealt with discharge of indebtedness income of a guarantor, not gain realized from the sale of the guarantor’s property at a foreclosure sale. In Frazier v. Commissioner, supra at 248, we achieved parity between the tax results to a party owning property sold in a foreclosure sale and the tax results to the willing seller who sells the property in an arm’s-length transaction to a willing buyer, “neither being under compulsion to buy or sell and both having reasonable knowledge of relevant facts.”59 Applying that 59A foreclosure, like a voluntary sale, is a disposition within the scope of the gain or loss provisions of sec. 1001. See Helvering v. Hammel, 311 U.S. 504 (1941); 2925 Briarpark, Ltd. v. Commissioner, 163 F.3d 313, 318 (5th Cir. 1999), affg. (continued...)Page: Previous 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 Next
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