- 21 - O’Bryan Bros., Inc. v. Commissioner, supra at 646, and Am. Felt Co. v. Burnet, supra at 532).5 PepsiAmericas is not controlling. There are significant differences between the facts of PepsiAmericas and the facts here. Control is the first major difference. PepsiAmericas controlled the entity whose debt it caused to become worthless. PepsiAmericas, Inc. v. United States, supra. In contrast, Bottlers did not control Properties. While the management group had some ownership of both entities, the parties stipulated that the entities themselves were not related. Bottlers itself could not control the decisions of Properties, alter the ownership of Properties, or cause Properties to take any actions whatsoever other than under the lease and the loan. The cause of the worthlessness is the second major difference. While PepsiAmericas terminated its ESOP and thus unilaterally caused the ESOP to be unable to pay its debts, several factors contributed to the worthlessness of the 5The PepsiAmericas and O’Bryan cases broadly interpret other cases involving this issue. See PepsiAmericas, Inc. v. United States, 52 Fed. Cl. 41, 48 (2002) (citing Roth Steel Tube Co. v. Commissioner, 620 F.2d 1176, 1181 (6th Cir. 1980), affg. 68 T.C. 213 (1977); O’Bryan Bros. v. Commissioner, 127 F.2d 645, 646 (6th Cir. 1942), affg. 42 B.T.A. 18 (1940); and Am. Felt Co. v. Burnet, 58 F.2d 530, 532 (D.C. Cir. 1932), affg. 18 B.T.A. 504 (1929)). A narrower interpretation is that a creditor cannot release a solvent debtor and then claim a deduction for a worthless debt. Roth Steel Tube Co. v. Commissioner, supra; O’Bryan Bros. v. Commissioner, supra; Am. Felt Co. v. Burnet, supra.Page: Previous 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Next
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