Timothy J. and Joan M. Miller - Page 39

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          "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).                                      





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