Patrick G. & Valerie V. O'Malley - Page 37




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               in the subdivision of Lot No. 12 and the financing                      
               derived from said Lot.  Under no circumstances would                    
               the seller of property in a bona fide sale pay the                      
               purchaser’s debt service on the financing obtained by                   
               purchaser used to pay the purchase price to seller.                     
               We have found the following facts with respect to the June              
          14, 2000 transaction.  Although the funds that petitioners re-               
          ceived from Kevin O’Malley as a result of the December 2, 1999               
          transaction enabled them to satisfy certain of their financial               
          obligations, they needed additional funds in order to meet cer-              
          tain other obligations.  Mr. O’Malley asked his brother Edward               
          O’Malley whether he would be willing to accommodate petitioners              
          and enable them to obtain such additional funds.  Edward O’Malley            
          agreed to do so.  To that end, Edward O’Malley and Mr. O’Malley              
          entered into an oral agreement under which:  (1) Petitioners’                
          transfer of lot 12 to Edward O’Malley pursuant to petitioners’               
          family subdivision agreement was to be structured in the form of             
          a sale;33 (2) Edward O’Malley was to borrow from F&M Bank                    
          $180,000, or 80 percent of the estimated $225,000 fair market                
          value of lot 12, and was to secure that loan with that lot;                  
          (3) Edward O’Malley was to transfer proceeds of the $180,000 loan            
          to petitioners; (4) petitioners were to make all the payments to             
          F&M Bank required by the terms of the $180,000 loan; (5) the                 


               33Edward O’Malley and Mr. O’Malley agreed to structure the              
          transfer of lot 12 as a sale because F&M Bank required such a                
          structure before it was willing to make a loan to Edward O’Malley            
          that was to be secured by that lot.                                          






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