ABC Beverage Corp., f.k.a. Beverage America, Inc. - Page 21

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          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,               

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