- 39 - "protected against loss" within the meaning of section 465(b)(4). In respondent's view, because the Rapp Group waived any right of recovery from petitioner in the event that they were required to perform under their guaranties,28 petitioners faced no realistic possibility of loss with respect to the amounts borrowed from Huntington and, therefore, may not deduct losses attributable thereto. As part of his argument, respondent maintains that petitioner was a third-party beneficiary of the contract embodied in the guarantor waivers, and could therefore have defeated any action by the Rapp Group to recover from him the amounts they paid to Huntington under their guaranties. Even assuming arguendo that the Rapp Group was effectively precluded from obtaining any reimbursement from petitioner of their guaranty payments, we do not agree that this factor eliminated any realistic possibility of loss by petitioner with respect to the Miller/Huntington Loan. Under the Miller/Huntington Loan, petitioner was the primary obligor on a recourse basis. He gave a second mortgage on his residence to secure his obligation. It is true that when MMS declared insolvency (which was an event of default under the Miller/Huntington Loan), Huntington in fact sought and obtained 28 Absent a waiver, a guarantor generally is entitled to recover from the primary obligor any amounts that the guarantor is required to pay to satisfy indebtedness. See, e.g., Brand v. Commissioner, 81 T.C. 821, 828 (1983).Page: Previous 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 Next
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