Walter L. Medlin - Page 155

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               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...)           




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