Aftergood v. Commissioner

¶1OPINION.

¶2Respondent contends'that petitioner’s payment of $2,000 in compromise and settlement of the action on his promissory note of $5,000 was in discharge of an individual obligation and, therefore, is not deductible from gross income; and, further, that the release and cancellation of the $3,000 was income properly includible in his 1944 Federal income tax return. Petitioner claims that the $2,000 payment was a business expense or a business loss properly deductible in 1944. In the alternative he contends that, in the event that income in the amount of $3,000 was realized, $5,000 is deductible (a) as a business expense or loss; (b) as an uncollectible account due from the bankrupt corporation; or (c) as a long-term capital loss through increase of the basis of investment in the defunct corporation.

¶3The record in this case discloses that by February 13, 1937, Holly-vogue Knitting Mills owed Silverman $5,000. Because Silverman wanted additional security on this debt, petitioner executed a $5,000 promissory note on that date. The evidence is clear that the debt was that of Hollyvogue and not a personal obligation of petitioner prior to such date. He received nothing of value when he executed the note and eventually sustained a sizeable out-of-pocket loss when required to settle it. He did no more than lend his name to the corporation as added security for an aggregation of debt which it owed to Silverman. He was an accommodation maker or guarantor of the corporation’s debt.1

¶4The entry in the corporation’s general journabon February 15,19’37, purporting to wipe out its indebtedness to Silverman and to show a $5,000 donation to surplus by petitioner’s wife, does not change the fundamental nature of petitioner’s position.

¶5As a guarantor, petitioner’s liability was contingent; and even though Hollyvogue became irredeemably insolvent the following year and he knew without question that he, personally, must pay its debt at Silverman’s demand, he was not entitled to a deduction until payment was, in fact, made. Eckert v. Burnet, 283 U. S. 140 (1931).

¶6In 1944, petitioner’s contingent liability was realized by the payment of $2,000 in settlement of Bessie Silverman’s suit on his note.

¶7Any resulting deduction must be on account of a nonbusiness bad debt under section 23 (k) (4) of the Code.2 When a guarantor “is forced to answer and fulfill his obligation of guaranty, the law raises a debt in favor of the guarantor against the principal debtor.” Kate Baker Sherman, 18 T. C. 746, 751 (1952). It does not matter that the obligation raised by the law was totally worthless when it arose. Agnes I. Fox, 14 T. C. 1160 (1950), revd. 190 F. 2d 101 (C. A. 2, 1951); Barnhart-Morrow Consolidated, 47 B. T. A. 590 (1942), affd. 150 F. 2d 285 (C. A. 9, 1945). The cases of Abraham Greenspon, 8 T. C. 431 (1947), and Frank B. Ingersoll, 7 T. C. 34 (1946), relied on by petitioner are distinguishable on their facts.

¶8_ Having determined that petitioner, as guarantor of the corporation’s obligation, sustained a nonbusiness bad debt under section 23 (k) (4), it follows that he incurred no taxable gain from the note settlement transaction.

¶9Beviewed by the Court.

¶10Decision will be entered under Bule SO.