-16-
that the DRO requires additional capital contributions only when
a member “has a deficit Capital Account following the liquidation
of * * * its interest” in LCL and that no creditor of LCL could
compel a liquidation of HBW’s interest in LCL, we conclude that
HBW is not a payor of last resort because HBW is not “personally
liable for the repayment” of any of LCL’s recourse debt within
the meaning of section 465(b)(2)(A). In other words, we conclude
that HBW is not personally liable for the repayment of any of
LCL’s recourse debt because HBW’s obligation to contribute
additional funds to LCL is not unavoidable in that HBW can avoid
contributing additional capital under the DRO simply by not
liquidating. See Callahan v. Commissioner, 98 T.C. at 283.
Petitioner relies erroneously on Wyo. Stat. Ann. sec.
17-15-121(a) and (c), to support a contrary conclusion.9 As
9 Wyo. Stat. Ann. sec. 17-15-121(a) and (c), provides:
Sec. 17-15-121. Liability of member to company.
(a) A member is liable to the limited liability
company:
(i) For the difference between his or its
contributions to capital as actually made and that
stated in the articles of organization, operating
agreement, subscription for contribution or other
document executed by the member as having been made by
the member; and
(ii) For any unpaid contribution to capital which
he or it agreed in the articles of organization,
operating agreement or other document executed by the
member to make in the future at the time and on the
(continued...)
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