T.C. Memo. 2002-166
UNITED STATES TAX COURT
WAYNE A. MCFADDEN, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 11206-99. Filed July 2, 2002.
John M. Walker, for petitioner.
H. Clifton Bonney, Jr., for respondent.
MEMORANDUM FINDINGS OF FACT AND OPINION
BEGHE, Judge: Respondent determined the following
deficiencies and accuracy-related penalties with respect to
petitioner’s Federal income tax:
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Accuracy-Related
Penalty
Year Deficiency Sec. 6662(a)
1995 $39,052 $7,810.40
1996 24,428 4,759.00
Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect for the years at issue, and
all Rule references are to the Tax Court Rules of Practice and
Procedure.
After concessions, the issues for decision are whether
petitioner: (1) Correctly computed his basis in a parcel of real
property he acquired and sold at a loss in 1995, or (2) in the
alternative, is entitled to a nonbusiness bad debt deduction in
1995 for a loan to petitioner’s daughter and her former
boyfriend.
We hold: (1) Petitioner overstated his basis and the
resulting loss on the sale of the property that he computed on
his return, and (2) is entitled to a nonbusiness bad debt
deduction.
FINDINGS OF FACT
Some of the facts have been stipulated and are so found.
The stipulation of facts and attached exhibits are incorporated
by this reference.
Petitioner resided in Foster City, California, when he filed
the petition in this case.
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Petitioner is an attorney licensed to practice law in the
State of California. He maintains an office in San Mateo,
California, under the name Law Offices of Wayne A. McFadden.
Petitioner’s practice includes real estate law, family law, and
civil litigation. Petitioner has two daughters, Stephanie and
Kari McFadden, and three sons, Johnathan, Rob, and Christian
McFadden.
On January 1, 1986, petitioner established a profit-sharing
plan entitled The Law Offices of Wayne A. McFadden Profit Sharing
Plan (the profit-sharing plan or the plan). Petitioner was the
fiduciary and sole beneficiary of the plan. The record does not
indicate the times and amounts of petitioner’s contributions to
the plan.
In 1988, petitioner caused the plan to make separate loans
to Stephanie and Johnathan (the 1988 loans) to enable each of
them to make a downpayment on a townhouse in Hercules,
California. Each loan was for $30,000 with an interest rate of
12-1/2 percent. Petitioner viewed the loans as business
transactions and required Stephanie and Johnathan each to execute
a note secured by a first deed of trust on the townhouse that she
or he purchased. Stephanie and Johnathan made regular payments
on their loans.
In 1989, Stephanie asked petitioner for another loan. At
the time, she was dating David Payne (David), a plumber who lived
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in Atascadero, California. Atascadero is approximately 4 hours
south of Hercules. Stephanie lived in Hercules while working as
an accountant for a construction company and would travel to
Atascadero on weekends to see David.
Stephanie and David had become interested in purchasing a
particular residential property in Atascadero, but neither had
the financial ability to do so. They wanted to live in the
house, refurbish it, and eventually resell it. In addition to
his plumbing skills, David had experience framing houses.
Stephanie and David felt that with David’s craft skills and
experience they could make most of the desired improvements to
the house themselves. Stephanie asked petitioner if he would
lend her and David the funds they needed to purchase and improve
the property.
Petitioner, as the fiduciary of his profit-sharing plan, was
willing to lend funds from his plan to Stephanie and David.
Petitioner viewed the loan as an appropriate investment for his
profit-sharing plan and was diligent in reviewing the feasibility
of Stephanie and David’s proposal. Petitioner inquired about the
location and condition of the property, and the nature and extent
of the proposed improvements. Petitioner consulted real estate
agents to confirm the adequacy of the security of a potential
loan. He believed that Stephanie had real estate talent, and
that David’s craft skills provided an opportunity to enhance the
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value of the property at a minimal labor cost. Stephanie and
David told petitioner that David would make approximately 80
percent of the improvements in exchange for $1,000 per month.
Petitioner concluded that the loan to Stephanie and David would
give the plan an opportunity to earn a 12-1/2 percent return.
Petitioner agreed to lend Stephanie and David funds from his
profit-sharing plan for part of the purchase price and all the
subsequent improvements to the Atascadero property.
In January 1990, petitioner, as the plan’s fiduciary, made
the first in a series of 33 loans totaling $160,701 to Stephanie
and David from his profit-sharing plan. The purpose of the loans
was to make the downpayment on residential property in
Atascadero, California, and postacquisition improvements. The
loans were made over an 18-month period beginning in January 1990
and ending in August 1991. The amounts of the loans varied from
$500 to $23,000. Petitioner believed that his only recourse in
the event of default would be to the Atascadero property.
On February 14, 1990, Stephanie and David purchased a
single-family residence in Atascadero, California, for $225,000,
with Stephanie acquiring an 80-percent interest and David a 20-
percent interest. The residence had two bedrooms, three
bathrooms, and was situated on 3.3 acres of land. Stephanie and
David financed the purchase of the Atascadero property by
obtaining a $180,000 loan from the Great Western Bank (the Great
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Western loan) in exchange for a note secured by a first deed of
trust to the Atascadero property. The balance of the purchase
price was financed by the loans to Stephanie and David from
petitioner’s profit-sharing plan.
David moved into the residence on the Atascadero property
shortly after the purchase and immediately began making
improvements. Stephanie continued to work and live in Hercules
but traveled to Atascadero on the weekends to be with David and
to help him with the improvements. When Stephanie and David
acquired the property, Stephanie intended to reside there full
time when her financial situation improved. At no time did
Stephanie become a full-time resident of the Atascadero property.
The improvements made by Stephanie and David included:
Paving the driveway; converting the existing carport to living
space; building a new carport, bathroom, jacuzzi, and master
bedroom with a full bath; and adding two fireplaces. David was
paid $1,000 per month out of the funds borrowed from petitioner
and, as expected, made approximately 80 percent of the
improvements. By all accounts, the craftsmanship on the
residence was well regarded. The improvements were completed
after approximately 1 year, and the property was listed for sale
shortly thereafter in 1991.
Stephanie and David first listed the Atascadero property for
sale with a real estate agent on April 19, 1991, at an asking
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price of $449,500. The asking price remained $449,500 for
approximately 3 months, but failed to generate any offers.
Stephanie and David reduced the price to $379,500 in
approximately July 1991. Despite the reduction, the Atascadero
property still failed to generate any offers. Stephanie and
David’s real estate agent attributed the lack of interest to a
“soft” market and was of the opinion that a further reduction, to
$350,000, would be necessary to generate any offers. Stephanie
and David were unwilling to reduce the price further and took the
property off the market in August 1991 with the hope that market
conditions would improve.
On August 30, 1991, Stephanie and David consolidated the 33
loans (hereinafter the Atascadero loan) by executing a “Note
Secured By Second Deed Of Trust” in favor of petitioner’s profit-
sharing plan. The note states that Stephanie and David are
individually, jointly, and severally liable for the outstanding
balance of $166,029 plus 12-1/2 percent interest from August 30,
1991, until paid, compounded annually. The note was due 24
months after the date of the note (August 30, 1991), or upon the
sale, transfer, conveyance, or encumbering of the property. The
note recites that the holder may proceed against the makers
independently. The note is secured by a second deed of trust and
assignment of rents to the Atascadero property.
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Stephanie and David made unsuccessful attempts to sell the
Atascadero property at different times over the next 2 years.
Stephanie and David leased the property to tenants during some
portions of the period that they owned the property. David lived
on the Atascadero property during periods he and Stephanie could
not find tenants. In 1993, Stephanie and David ended their
relationship.
At some point during or before 1994, Stephanie sold her
townhouse in Hercules and built a home in Oakland, California, in
which she resided. While Stephanie lived in Oakland, her mother
experienced health problems and moved in with her.
In 1994, respondent examined petitioner’s profit-sharing
plan and trust. Respondent determined that the 1988 loans to
Stephanie and Johnathan and the Atascadero loan to Stephanie and
David were prohibited transactions under section 4975(c) because
they were made to disqualified persons as defined by section
4975(e)(2). Respondent required Stephanie and Johnathan to
correct the prohibited 1988 loans by returning the outstanding
loan balances to the plan by December 31, 1994, and that they
each pay a 5-percent excise tax and interest. Johnathan and
Stephanie repaid the outstanding balances of their 1988 loans by
December 31, 1994.
With respect to the Atascadero loan, respondent offered to
allow the transaction to be corrected in either of two ways.
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First, the outstanding loan principal could be returned to the
plan, plus the interest the plan would have earned in all of 1994
and the first day of 1995. Respondent determined that the
interest should be 6 percent, the rate historically earned by the
plan. Respondent calculated the outstanding principal plus
interest on the Atascadero loan to be $176,276. Respondent
computed this figure by adding the principal of the Atascadero
loan, $160,701, to the $5,570 outstanding balance of Stephanie’s
1988 loan. The interest on the outstanding amount, as determined
by respondent, was $10,005. The total amount required to be
returned to the plan on January 1, 1995, for correction was
$176,276.
In the alternative, respondent offered to allow petitioner
to take an early deemed distribution of Stephanie and David’s
note on January 1, 1995, and agree to pay a 10-percent additional
tax for an early distribution prior to age 59-1/2 under section
72(t). Respondent determined that the amount of the distribution
should be $176,276, which would have to be reported as income on
petitioner’s 1995 Federal income tax return. The record does not
indicate how respondent calculated the value of the note secured
by the second deed of trust. In exchange for petitioner’s taking
the deemed distribution of the note and paying the section 72(t)
additional tax, respondent agreed that petitioner would not be
liable for any other taxes, interest, or penalties with respect
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to the loan to Stephanie and David. Stephanie would be required
to pay a 5-percent excise tax and interest totaling $14,381.
Respondent informed petitioner that no closing agreement
would be executed if he accepted the terms of either offer.
According to the examining agent, it was not the practice of
respondent to use closing agreements to resolve profit-sharing
plan disputes, except in cases of fraud and when a case is
selected for review. A closing agreement would not be used to
resolve the dispute with petitioner because it did not fall
within either exception. The dispute would be resolved when
petitioner performed according to the terms of the agreement.
Petitioner agreed to a deemed distribution pursuant to the
terms offered by respondent. On January 1, 1995, as the profit-
sharing plan’s fiduciary, petitioner assigned Stephanie and
David’s note, secured by the second deed of trust to the
Atascadero property, to himself as beneficiary of the plan.
Petitioner was 58 years old at the time of the distribution.
In the beginning of 1995, Stephanie accepted a job in
Dallas, Texas. Stephanie lived in a rented apartment in Texas
for more than half of 1995, continued to make the mortgage
payments on her home in Oakland where her mother resided, and
made payments on the Great Western loan on the Atascadero
property. The monthly payments on the Great Western loan were
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$1,214. David did not make any payments on the Great Western
loan.
On July 7, 1995 petitioner’s accountant notified him the
amount of the deemed distribution was incorrect because Stephanie
had repaid the outstanding balance on her 1988 loans prior to
December 31, 1994. According to petitioner’s accountant, the
amount of the distribution should have been reduced by $5,905,
from $176,276 to $170,371. Respondent agreed with this
reduction.
By summer 1995, Stephanie was experiencing financial
difficulties from having to make 3 monthly payments. Stephanie
informed petitioner that she could no longer continue making
payments on the Great Western loan and was going to default.
Petitioner became concerned that he would lose his security
interest in the Atascadero property if Great Western foreclosed
on the first deed of trust. Petitioner’s fears were aggravated
when he discovered a State tax lien on the Atascadero property.
When he asked Stephanie about her other assets out of which his
note could be satisfied, Stephanie told him she had “nothing”.
Petitioner suggested to Stephanie that she was morally obligated
to sell the Oakland home to satisfy his note. During their
conversations, petitioner learned that Stephanie was
contemplating filing for bankruptcy protection. Petitioner
consulted a bankruptcy lawyer who advised that any gain from a
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sale of the Oakland home would be exempt from Stephanie’s
creditors. Petitioner also had conversations with David about
the debt. Petitioner felt that David honestly wanted the loan to
be paid but concluded that David was not in a position to make
payments.
In August 1995, after consulting with a real estate agent
about the value of the Atascadero property, petitioner accepted a
deed in lieu of foreclosure to the Atascadero property from David
and Stephanie to avoid losing his security interest. The deed
states that it is in full satisfaction of the obligations secured
by the first deed of trust in favor of Great Western. The deed
was executed by David on August 11, 1995, and by Stephanie on
August 21, 1995. The fair market value of the Atascadero
property was $207,500 at the time the deed was executed. The
outstanding balances on the loans from Great Western and
petitioner’s profit-sharing plan were $168,957 and $170,371,
respectively. At the time the deed was conveyed to petitioner,
neither Stephanie nor David had made any principal payments on
the Atascadero loan. Petitioner did not pursue a judgment in the
California courts for the balance of the loan because he believed
that California’s antideficiency statute, section 580b of the
California Civil Procedure Code (2002), precluded any recovery.
Petitioner made the monthly payments on the Great Western
loan from September 1995 through December 1995. Petitioner paid
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the earthquake and homeowner’s insurance and the property taxes
on the Atascadero property in November 1995. On December 29,
1995, petitioner sold the Atascadero property to Bryan Dunnivan
for $200,286. Mr. Dunnivan took the property subject to the
Great Western first deed of trust and gave petitioner a note for
$32,000 secured by a deed of trust to the Atascadero property.
On December 29, 1995, Stephanie sold her Oakland home. In
1995, Stephanie also purchased a house in Dallas, Texas, which
she sold in 1996 for a gain of $45,401. Stephanie earned $87,148
and $100,744 in 1995 and 1996, respectively.
On his 1995 Federal income tax return, petitioner reported
the $170,371 early distribution in gross income and calculated a
tax of $17,037 for an early distribution under section 72(t).
Petitioner claimed a $136,331 short-term capital loss from the
sale of the Atascadero property. Petitioner calculated a
$336,331 basis in the property, consisting of $170,371, the
amount owed him by Stephanie and David when he took the deed in
lieu of foreclosure, plus $168,957, the amount outstanding on the
note held by Great Western. Petitioner acknowledges but does not
explain the $2,997 difference between the basis he claimed on his
return, $336,331, and the sum of the two amounts he used to
calculate the basis, $339,328 ($170,371 + $168,957).
Petitioner did not claim any deduction for a worthless debt
on his 1995 return. In response to respondent’s denial of the
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capital loss on the sale of the Atascadero property claimed by
petitioner in his 1995 return, petitioner in his petition claimed
a capital loss deduction for the debt in the amount outstanding
on the Atascadero loan.
OPINION
The issues for decision are whether petitioner:
(1) Correctly calculated his basis in computing a loss on the
sale of the Atascadero property, or (2) in the alternative, is
entitled to a deduction under section 166 for a worthless
nonbusiness debt.
Respondent’s determination in the notice of deficiency is
presumed correct, and petitioner bears the burden of proving it
is incorrect. Rule 142(a);1 Welch v. Helvering, 290 U.S. 111,
115 (1993). We hold that petitioner incorrectly calculated his
basis in the Atascadero property. Petitioner’s basis in the
Atascadero property was $207,500, which entitles petitioner to a
$7,214 loss on the December 29, 1995, sale of the property to
Bryan Dunnivan for $200,286. Additionally, we hold that
petitioner is entitled to a $131,828 deduction for a nonbusiness
bad debt under section 166 for 1995.
1
Sec. 7491, which is effective for Court proceedings that
arise in connection with examinations commenced after July 22,
1998, places the burden on the Commissioner in certain
circumstances. However, petitioner has not contended, nor is
there evidence, that the examination of his 1995 return commenced
after July 22, 1998, or that sec. 7491 applies.
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Petitioner’s Basis in the Atascadero Property
Petitioner contends that his basis in the Atascadero
property, for the purpose of computing his loss on its sale to
Bryan Dunnivan was $339,328; this is the sum of the outstanding
balances of the two notes secured by the property, the $168,957
note held by Great Western and the $170,371 note received by
petitioner as a distribution from his profit-sharing plan.
Petitioner is mistaken.
Section 1012 sets forth the fundamental proposition that
“the basis of property shall be the cost of such property”. It
is well settled that the cost of property to a mortgagee who
receives a voluntary conveyance on account of a debt is the
property’s fair market value. See Commissioner v. Spreckels, 120
F.2d 517, 520 (9th Cir. 1941); Kohn v. Commissioner, 16 T.C. 960,
962 (1951), affd. 197 F.2d 480 (2d Cir. 1952); Sargent v.
Commissioner, T.C. Memo. 1970-214. It is as if the debtor had
sold the property to an outsider for cash, and then used the cash
to reduce the debt. Commissioner v. Spreckels, supra. Any
portion of the debt not satisfied by the conveyance may be
deducted under section 166 to the extent the taxpayer can prove
worthlessness. Id.; Kohn v. Commissioner, supra.
The case at hand differs slightly from the cited cases
because it involves a junior lienholder’s acquiring property
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encumbered with a senior lien. Like the cited cases,
petitioner’s basis in the Atascadero property is its fair market
value, but the existence of the Great Western mortgage requires
additional explanation as to how we arrive at the fair market
value basis.
In the case at hand, petitioner’s recourse debt, owed him by
Stephanie and David on the Atascadero loan, was satisfied to the
extent of $38,543, the amount by which the property’s fair market
value--$207,500--exceeded the Great Western note secured by the
first deed of trust--$168,957--and is a “cost” of the property to
petitioner.
In addition, petitioner took the property subject to the
Great Western note secured by the first deed of trust, which had
an outstanding balance of $168,957 on the date petitioner
acquired the property. A purchaser’s basis under section 1012
includes genuine indebtedness to which the property is subject.
Estate of Franklin v. Commissioner, 544 F.2d 1045, 1049 (9th Cir.
1976), affg. 64 T.C. 752 (1975); Bertoli v. Commissioner, 103
T.C. 501, 515 (1994). The genuine nature of the Great Western
loan is not in dispute; petitioner respected the debt to which
the property was subject and made payments on the Great Western
loan to protect his interest in the Atascadero property. The
outstanding balance on the Great Western loan–-$168,957–-is
included in petitioner’s cost basis.
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Petitioner’s basis in the Atascadero property is $207,500,
which is the fair market value as stipulated by the parties on
the date he acquired the property and is also the sum of the
extent to which his debt was satisfied--$38,543--and the balance
of the Great Western loan to which the property was subject--
$168,957.
On December 29, 1995, petitioner sold the Atascadero
property to Bryan Dunnivan for $200,286. Respondent has not
argued that the December 29, 1995, sale was not at arm’s length.
We hold that petitioner is allowed a $7,214 short-term capital
loss for 1995 on the sale of the property to Mr. Dunnivan.
Section 166 Deduction
When a creditor receives property on account of a recourse
debt, the debt is considered satisfied to the extent of the value
of the property acquired. Commissioner v. Spreckels, supra at
520. The unpaid balance of the debt may be deducted under
section 166 if and to the extent that the taxpayer can establish
its worthlessness. Id.; Kohn v. Commissioner, supra; Litzenberg
v. Commissioner, T.C. Memo. 1988-482; Shaheen v. Commissioner,
T.C. Memo. 1982-445; Sargent v. Commissioner, supra; see also
sec. 1.166-6, Income Tax Regs.
In the case at hand, when petitioner accepted the deed in
lieu of foreclosure, the Atascadero loan, the balance of which
was $170,371, was satisfied to the extent of $38,543, the amount
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Stephanie would have received had she sold the property for cash
subject to the Great Western first deed of trust and paid the
cash to petitioner. As discussed below, petitioner is entitled
to treat the excess of the Atascadero loan, $131,828, as a
worthless nonbusiness debt under section 166.
Section 166 allows a deduction for any debt that becomes
worthless within the taxable year. Sec. 166(a)(1). The parties
agree that the Atascadero loan was a nonbusiness debt. A
nonbusiness debt is any debt that is not created or acquired in
connection with a trade or business of the taxpayer. Sec.
166(d)(2)(A). In the case of nonbusiness debt, the deduction is
treated as a loss from the sale or exchange of a capital asset
held for not more than 1 year. Sec. 166(d)(1)(B).
Taxpayers seeking to avail themselves of the so-called bad
debt deduction must prove the existence of a bona fide debt, as
defined by section 1.166-1(c), Income Tax Regs., and that the
debt became wholly worthless during the tax year in which it was
deducted, sec. 1.166-5(a)(2), Income Tax Regs.
On reply brief, respondent insinuates that the loan payments
from petitioner’s profit-sharing plan to Stephanie and David were
gifts rather than bona fide debt. This position is diametrically
opposed to the characterization respondent has given the payments
since 1994. Throughout the course of the examination of the
profit-sharing plan and trust, the settlement discussions
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regarding the prohibited transactions, and the trial and
subsequent briefs in the case at hand, respondent has repeatedly
referred to the funds advanced to Stephanie and David as “loans”
and “debt”. Respondent has clearly had ample opportunity to take
the position that the funds were in reality gifts but waited
until the final installment of the briefing schedule. Respondent
cannot unbake the cake by springing this argument on petitioner
and the Court this late in the game.
For completeness, we shall discuss whether the Atascadero
loan was bona fide debt. Bona fide debt is debt that arises from
a debtor-creditor relationship based upon a legally valid and
enforceable obligation to pay a fixed or determinable sum of
money. See sec. 1.166-1(c), Income Tax Regs. Whether a debtor-
creditor relationship exists depends on all the facts and
circumstances, and generally no one fact is determinative. An
essential question is whether there is a good-faith intent on the
part of the recipient of the funds to make repayment, and a good-
faith intent of the person advancing the funds to enforce
repayment. In determining whether such intent exists, we
consider all the evidence, and we evaluate whether there was a
reasonable expectation of repayment in light of the economic
realities at the time the funds were advanced. See Fisher v.
Commissioner, 54 T.C 905, 909-910 (1970).
Intrafamily transfers are subject to close scrutiny and may
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be presumed to be gifts. The presumption may be rebutted by an
affirmative showing that, at the time of the transaction, there
was a real expectation of repayment and a real intent to enforce
the collection of the asserted debt. See Estate of Van Anda v.
Commissioner, 12 T.C. 1158 (1949), affd. per curiam 192 F.2d 391
(2d Cir. 1951).
Some of the factors we consider when determining whether
there is a debtor-creditor relationship with a reasonable
expectation of repayment are whether: (1) There is a note or
other evidence of indebtedness; (2) interest is charged; (3)
there is a fixed schedule for repayment; (4) security or
collateral is requested; (5) there is any written loan agreement;
(6) a demand for repayment has been made; (7) the parties’
records reflect the transaction as a loan; (8) repayments have
been made; and (9) the borrower was solvent at the time of the
loan. See Hunt v. Commissioner, T.C. Memo. 1989-335.
The case at hand presents enough of the above indicia to
satisfy us that there was a debtor-creditor relationship. The
Atascadero loan is evidenced by a note executed by Stephanie and
David in favor of petitioner; the note was secured by a second
deed of trust to the Atascadero property; and interest was
charged at a rate well above the applicable Federal rate.2 See
2
In January 1990, when Stephanie and David received the
first disbursement of funds, the applicable Federal rate was 7.90
percent for short-term loans with an annual period of
(continued...)
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sec. 7872. In addition, petitioner testified that he viewed the
Atascadero loan as an investment for his profit-sharing plan.
Stephanie testified that the funds were loans, and that she had
always intended to repay the amounts borrowed. We found
petitioner and Stephanie to be credible, forthright, and
believable in all respects. The advances from petitioner’s
profit-sharing plan to Stephanie and David were bona fide debt.
We go on to examine whether the debt became worthless in 1995.
The worthlessness requirement for nonbusiness debts is
interpreted strictly: The deduction is unavailable if even a
modest fraction of the debt can be recovered. Bodzy v.
Commissioner, 321 F.2d 331, 335 (5th Cir. 1963) (“last vestige of
value” must have “disappeared”), affg. T.C. Memo. 1962-40;
Clanton v. Commissioner, T.C. Memo. 1995-416 (“partial
worthlessness is insufficient”); sec. 1.166-5(a)(2), Income Tax
Regs. This “hard line” approach is taken because the parties to
nonbusiness debts are typically members of the same family. The
requirement of total worthlessness minimizes the opportunities
for taxpayers to claim deductions for gifts to family members.
Buchanan v. United States, 87 F.3d 197, 199 (7th Cir. 1996).
To prove the worthlessness of a nonbusiness debt, a taxpayer
must be able to point to some particular event or group of facts
2
(...continued)
compounding. In August 1991, when the loans were consolidated,
the rate was 6.81 percent. See Rev. Rul. 90-1, 1990-1 C.B. 155;
Rev. Rul. 91-41, 1991-2 C.B. 352.
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that proves worthlessness. Coborn v. Commissioner, T.C. Memo.
1998-377 (citing Am. Offshore, Inc. v. Commissioner, 97 T.C.
579, 593-594 (1991)), affd. 205 F.3d 1345 (8th Cir. 1999).
Petitioner must establish sufficient objective facts from which
worthlessness could be determined. Fox v. Commissioner, 50 T.C.
813, 822-823 (1968), affd. per curiam 25 AFTR 2d 70-891, 70-1
USTC par. 9373 (9th Cir. 1970). A debt is considered worthless
when there are reasonable grounds for abandoning hope that the
debt will be repaid. The decision must be made in the exercise
of sound business judgment. Andrew v. Commissioner, 54 T.C. 239,
248 (1970). Legal action is not required to enforce payment
where the surrounding facts and circumstances indicate that, in
all probability, the action would not result in an enforceable
judgment in favor of the lender. Sec. 1.166-2(b), Income Tax
Regs. The determination by the trier of fact that a debt has
become worthless requires an examination of all the facts and
circumstances. Boehm v. Commissioner, 326 U.S. 287, 293 (1945);
Dallmeyer v. Commissioner, 14 T.C. 1282, 1291 (1950).
Petitioner contends he had two grounds for concluding the
Atascadero loan was worthless in 1995. First, he argues that
Stephanie’s financial condition in 1995 had deteriorated to the
point where he would have been unable to recover any of the
outstanding balance from her. Second, petitioner contends that
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section 580b of the California Code of Civil Procedure (section
580b) prevented him from obtaining a deficiency judgment against
either Stephanie or David for the balance of the debt, in effect
rendering worthless the balance of the note.
Respondent contends that petitioner either made a gift to
Stephanie and David when he did not take collection action, or
that he failed to prove the debt was worthless. Respondent
emphasizes that Stephanie earned $87,148 and $100,744 in 1995 and
1996, respectively, and sold houses in both of those years.
Respondent also disputes the application of section 580b.
Petitioner’s decision to take a deed in lieu of foreclosure
to the Atascadero property and conclude that the outstanding
balance of the Atascadero loan was worthless in 1995 under
section 166 reflected an exercise of sound business judgment.
Petitioner’s inquiries into the ways in which Stephanie
might satisfy the debt refute respondent’s argument that
petitioner made gifts to Stephanie and David and support the
conclusion that the debt was worthless. In 1995, Stephanie was
in dire economic straits from having to service both the Great
Western loan and the loan on her home in Oakland, as well as pay
rent on an apartment in Texas. Stephanie informed petitioner
that she had to keep her apartment in Texas where she lived and
worked, and that she was unwilling to evict her mother to sell
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the Oakland home. Her only option was to cease making payments
on the Great Western loan. Great Western would then have
foreclosed on its first deed of trust, which would have resulted
in petitioner’s second deed of trust being forfeited to the
senior lienholder. Nevertheless, petitioner inquired into the
value of Stephanie’s home in Oakland with the view to convincing
her to sell the home and use the proceeds to satisfy her debt to
petitioner. However, Stephanie’s financial condition had
deteriorated to the point where she was contemplating filing for
bankruptcy. A bankruptcy attorney advised petitioner that the
gain from any sale of the Oakland home would be exempt from
creditors. After his discussions with Stephanie, in which she
informed him that she had “nothing”, petitioner concluded that
the only asset out of which she could satisfy her debt was the
Atascadero property.
We are unmoved by respondent’s argument that Stephanie’s
income in 1996 would have enabled her to make payments to
petitioner. A taxpayer is not required to “‘wait until some turn
of the wheel of fortune may bring the debtor into affluence.’”
Andrew v. Commissioner, 54 T.C. 239, 249 (1970) (quoting
Minneapolis, St. Paul & Sault Ste. Marie R.R. Co. v. United
States, 164 Ct. Cl. 226, 241 (1964)). Our concern is whether
petitioner exercised sound business judgment when he concluded
the debt was worthless in 1995. Petitioner has established that
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in 1995 he did not believe Stephanie would be able to make
payments on his debt, and that it was worthless.3
Petitioner also had conversations with David about the debt.
Petitioner testified credibly that he believed that, even though
David was honest and wanted the debt paid, he did not have the
means to make payments. Petitioner also consulted a real estate
broker concerning the value of the Atascadero property.
Petitioner took a deed in lieu of foreclosure to protect his
security interest and to salvage part of the debt he was owed.
In addition to Stephanie’s and David’s inability to pay,
petitioner’s decision that the debt was worthless was based on
section 580b of the California Code of Civil Procedure.
Petitioner believed that section 580b barred him from pursuing an
action to recover the outstanding balance from either Stephanie
or David. Section 580b provides that no deficiency judgment may
be obtained--
after a sale of real property * * * for failure of the
purchaser to complete his contract of sale, or under a
deed of trust * * * or mortgage * * * given to the
vendor to secure payment of the balance of the purchase
price of that real property, * * * or under a deed of
trust * * * or mortgage * * * on a dwelling for not
more than four families given to a lender to secure
3
Petitioner did not claim a bad debt deduction on his 1995
return. Even though he believed the debt was worthless in 1995,
petitioner was under the mistaken impression that the proper tax
treatment of the worthless debt was to account for it as part of
his basis in the Atascadero property. Petitioner’s
misunderstanding of the proper tax treatment does not alter our
conclusion that he reasonably believed the debt was worthless in
1995.
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repayment of a loan which was in fact used to pay all
or part of the purchase price of that dwelling
occupied, entirely or in part, by the purchaser. [Cal.
Civ. Proc. Code sec. 580b (West 2002).]
While both petitioner and respondent devoted substantial
space in their briefs attempting to persuade the Court to adopt
their respective views of the proper construction of section
580b, we need not resolve this question.4 In the light of
Stephanie’s and David’s inability to pay, we view petitioner’s
conclusion that the unsatisfied portion of the Atascadero loan
was worthless as an exercise of sound business judgment.
To give effect to the foregoing conclusions,
Decision will be entered
under Rule 155.
4
Although the application of Cal. Civ. Proc. Code sec. 580b
(West 2002) to petitioner’s loan is not clear, the policy behind
the statute and its liberal application by the California courts,
Roseleaf Corp. v. Chierighino, 378 P.2d 97, 101 (Cal. 1963)
(purpose of sec. 580b is to place the risk of inadequate security
on the lender); BMP Prop. Dev. v. Melvin, 198 Cal. App. 3d 526
(1988) (“purchase money” includes funds used to satisfy the
purchase price and funds used for other purposes that are an
integral part of the consummation of the transaction); Prunty v.
Bank of Am., 37 Cal. App. 3d 430 (1974) (courts have accorded
sec. 580b a reading that often goes beyond the bounds of the
statutory language), suggest that petitioner’s decision to avoid
the financial and time costs of risky litigation was reasonable.