Patrick G. & Valerie V. O'Malley - Page 36




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          tioners that amount.                                                         
               On the record before us, we find that the check dated June              
          3, 2003, that petitioners issued to Kevin O’Malley for $54,400               
          does not qualify under section 108(e)(5) as a purchase price                 
          reduction of the $318,000 price for the sale of lot 5.32                     
          June 14, 2000 Transaction                                                    
               Petitioners acknowledge that they cast the form of the June             
          14, 2000 transaction as a sale by petitioners of lot 12 to Edward            
          O’Malley for $225,000.  However, it is petitioners’ position that            
          that transaction does not constitute a sale for tax purposes.  In            
          support of their position, petitioners argue:                                
                    There is no debate in this case as to what tran-                   
               spired.  Shortly after acquiring their home in 1997                     
               Petitioners endeavored to investigate the subdivision                   
               and development of the property into lots for resale                    
               separate from what they desired to retain for their                     
               residence.  When it was determined that the property                    
               could be subdivided under the Anne Arundel County fam-                  
               ily conveyance subdivision provisions, Petitioners                      
               elicited agreements and understandings with * * * Ed-                   
               ward O’Malley, to accept * * * Lot [12] and as regards                  
               to Lot No. 12 an agreement and understanding with Ed-                   
               ward O’Malley to reconvey Lot No. 12 to Petitioners at                  
               the expiration of the five (5) year holding period.                     
               Edward O’Malley would not benefit financially from the                  
               development of Lot No. 12, nor would he assume any of                   
               the benefits of, or incur any obligations associated                    
               with, ownership of Lot No. 12.  Although Edward O’Mal-                  
               ley was legally responsible to the Bank to comply with                  
               the terms and conditions of its first mortgage loan,                    
               the evidence clearly establishes that Petitioners have                  
               paid all of the debt service on the mortgage loan in                    
               accordance with their agreement and understanding that                  
               Edward O’Malley was only to be an accommodation party                   

               32See supra note 21.                                                    






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