Thompson v. Commissioner

Baah, J.,

dissenting: It is probably true that the petitioner might have purchased the assets of the estate for approximately the amount of their fair market value at that time, determined by us to amount to approximately $26,500 or about 53 per cent of the amount of the claims against the estate, aggregating about $50,000. She then might have paid approximately $17,500 of the price of the assets by applying the credit attributable to her claim of $33,194.91. The other creditors, whose claims amounted to $16,775.02, would then have received approximately $8,800 in discharge of their claims, instead of the $15,440.65 which she paid them, and they would then have borne approximately $6,500 of the loss which the petitioner assumed. This much of her loss may be characterized as voluntary and nondeductible, in the absence of proof of any purpose or motive which would qualify it as a statutory deduction.

Even if the petitioner had been required to pay at a public sale as much as $40,000 for the assets of the estate, her share of that amount would have been approximately $26,500 and the other creditors would have received only about $13,500. It therefore seems hardly credible that she could not have acquired the claims of the other creditors for some amount substantially less than $15,440.65 unless she was motivated by sentiment or reasons other than business judgment. As to the purchased claims I therefore agree with the majority of the Court that the loss was in large part voluntarily assumed and that no deduction should be allowed.

However, the petitioner had no opportunity of avoiding the remaining loss of $15,648.72 which was attributable to the indebtedness of $33,194.91, because of her personal obligation as a surety upon the note of her deceased husband. As a consequence of her accommodation and without reference to any subsequent volition or action on her part, this loss was sustained by the petitioner as the direct result of the inability of the insolvent estate to discharge its obligation to reimburse her for her payment of its debt. This loss should be allowed as a deduction upon the grounds stated and under the authorities cited in the dissenting opinion of Judge Bruce, in which I concur to this extent.