- 13 - payment is compelled, the fact that the guarantor of the corporate debt is also a shareholder and employee of the corporation does not preclude the guarantor from a bad debt deduction so long as the dominant motivation for the guaranty was to protect his or her salary. United States v. Generes, 405 U.S. 93 (1972). The reason for either situation is that, upon payment by the guarantor, the debtor’s obligation to the creditor becomes an obligation to the guarantor, not a new debt, and by subrogation the guarantor steps into the shoes of the creditor. Putnam v. Commissioner, 352 U.S. 82, 85 (1956). No deduction is allowable, however, if at the time the guaranty was made, the taxpayer had no reasonable expectation of repayment of the sums advanced. Hoyt v. Commissioner, 145 F.2d 634 (2d Cir. 1944); Thompson v. Commissioner, 22 T.C. 507 (1954). The record does not support petitioners’ contention that loan payments in 1999 were necessary to protect petitioner Brody’s salary of $266,083 from KOA. Petitioners were compelled to make their loan repayments to Franklin National Bank not as guarantors, but as debtors. Petitioners were listed as “co- borrowers” and thus were liable in the first instance. However, even if we were to assume that loan repayments were made by petitioners as guarantors, nothing in the record indicates that petitioners would have had a worthless claim against KOA, since KOA paid petitioner Brody’s salary in 1999 in the amount ofPage: Previous 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Next
Last modified: May 25, 2011