                         T.C. Memo. 2000-355



                      UNITED STATES TAX COURT



ESTATE OF ALTON BEAN, DECEASED, GARY A. BEAN, ADMINISTRATOR, AND
                   MABLE BEAN, Petitioners v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent

 GARY A. BEAN AND CYNTHIA BEAN, Petitioners v. COMMISSIONER OF
                  INTERNAL REVENUE, Respondent


     Docket Nos. 5228-99, 5229-99.         Filed November 15, 2000.


     James Allen Brown, for petitioners.

     Brian A. Smith, for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION


     SWIFT, Judge:   These cases were consolidated for trial,

briefing, and opinion.   For years 1987 through 1992, respondent

determined deficiencies in petitioners' Federal income taxes and

accuracy-related penalties as follows:
                                     - 2 -
Alton and Mable Bean
                                             Accuracy-Related Penalty
        Year            Deficiency                 Sec. 6662(a)
        1987             $101,941                       ---
        1988               14,143                       ---
        1989               26,741                       ---
        1990               51,787                    $10,357
        1991               54,005                     10,801
        1992               39,656                      7,931

Gary and Cynthia Bean
                                             Accuracy-Related Penalty
        Year            Deficiency                 Sec. 6662(a)
        1987             $ 3,041                        ---
        1988                3,056                       ---
        1989                8,891                       ---
        1990               24,575                     $4,915
        1991               31,999                      6,400
        1992               19,378                      3,876


     The issues for decision involve whether petitioners are

entitled to increased bases in their investments in an

S corporation as a result of (1) petitioners' personal guaranties

of the corporation's indebtedness on bank loans, (2) a transfer

of partnership assets to the S corporation, and (3) corporate

liabilities owed to a partnership.            Also at issue is whether

petitioners are liable for the accuracy-related penalties.

     Unless otherwise indicated, all section references are to

the Internal Revenue Code in effect for the years in issue.


                             FINDINGS OF FACT

     Some of the facts have been stipulated and are so found.

     Alton Bean, decedent, died in January of 1999 in Amity,

Arkansas.      Decedent and petitioner Mable Bean were husband and

wife and the parents of petitioner Gary Bean.              Petitioners Gary

and Cynthia Bean are husband and wife.            At the time the petitions
                                 - 3 -

were filed, Mable, Gary, and Cynthia Bean resided in Amity,

Arkansas.

     Shortly after decedent’s death, Gary Bean was appointed

administrator of decedent’s estate.

     For convenience, hereinafter all references to petitioners

refer to decedent and Mable Bean and to Gary and Cynthia Bean.

     For many years, decedent and Gary Bean jointly owned and

managed a trucking business in Amity, Arkansas.    Through 1992,

decedent and Gary Bean operated the trucking business as a

partnership (the Partnership).    During all relevant periods,

decedent owned a 75-percent interest in the Partnership, and Gary

Bean owned a 25-percent interest in the Partnership.

     On April 30, 1988, decedent, Mable, and Gary Bean formed an

Arkansas corporation (the Corporation) that elected in 1989 to be

taxed pursuant to subchapter S of the Internal Revenue Code.

From early 1988 through 1992, decedent and Mable Bean owned 75

percent of the stock in the Corporation, and Gary Bean owned the

remaining 25 percent of the stock in the Corporation.

     Through 1992, the Corporation, through its employees,

provided maintenance on and parts for the trucks of the

Partnership.

     On October 9, 1990, decedent and Mable Bean executed a

$960,019 second mortgage on their personal residence to the Bank
                               - 4 -

of Amity in order to secure certain indebtedness that the

Corporation owed to the Bank of Amity.

     On December 30, 1992, to provide operating capital for the

Corporation, the Bank of Amity extended to the Corporation a

$600,000 line of credit.   To secure repayment of funds actually

provided to the Corporation under the line of credit, the Bank of

Amity required each petitioner to sign personal guaranties for

repayment of such funds and to mortgage in favor of the Bank of

Amity certain additional real property they owned with a fair

market value, on December 23, 1993, of $570,500.

     In the subsequent years through the date of trial, all

payments to the Bank of Amity that were made on the above

indebtedness were made by the Corporation.   The Bank of Amity has

not foreclosed on the loans made to the Corporation.

     On or shortly before December 31, 1992, the Partnership

transferred all but one of its assets to the Corporation, the

Corporation assumed all liabilities of the Partnership, and the

Corporation took over ownership and operation of the

Partnership's trucking business.   The Corporation transferred no

cash to the Partnership.   For income tax purposes, petitioners

treated this transaction as a sale of assets by the Partnership

to the Corporation for no gain to the Partnership (i.e., the

Partnership treated the amount of the liabilities assumed by the

Corporation as equal to the Partnership's tax basis in the assets
                               - 5 -

transferred).   As of December 31, 1992, the partners of the

Partnership had not dissolved the Partnership.

     For 1990 and 1991, the Corporation realized operating losses

of $1,190,460 and $482,481, respectively.

     On their joint Federal income tax returns for 1987 through

1992, prepared by petitioners' accountant, petitioners deducted

(through net operating loss carrybacks and carryovers) their

entire respective shares of the previously mentioned losses of

the Corporation for 1990 and 1991.

     On audit, respondent determined that petitioners lacked

sufficient tax bases in their investments in the Corporation to

be entitled to any of the above-claimed loss deductions.


                              OPINION

     Under section 1366, shareholders in an S corporation may

deduct their pro rata shares of the corporation's losses to the

extent the losses are supported by the shareholders' adjusted

bases in the stock and in any indebtedness of the S corporation

to the shareholders.

     Unless the shareholders of the S corporation incur an

economic outlay with respect to indebtedness that the corporation

owes to third parties, the shareholders are not entitled to

increase their bases in their stock by the amount of the

indebtedness.   See, e.g., Bergman v. United States, 174 F.3d 928,

932-934 (8th Cir. 1999); Estate of Leavitt v. Commissioner, 875
                                - 6 -

F.2d 420, 422 (4th Cir. 1989), affg. 90 T.C. 206 (1988).

Accordingly, mere shareholder guaranties of corporate

indebtedness to third parties generally do not qualify as an

economic outlay, and they do not qualify as indebtedness from the

S corporations to the shareholders “until and unless the

shareholders pay part or all of the * * * [corporate

indebtedness].”    Raynor v. Commissioner, 50 T.C. 762, 771 (1968);

see also Bergman v. United States, supra; Perry v. Commissioner,

47 T.C. 159, 162-163 (1966), affd. 392 F.2d 458 (8th Cir. 1968).

Likewise, where corporate indebtedness to third parties is merely

secured by the shareholders' property, no economic outlay has

occurred, no indebtedness to the shareholders exists, and

shareholders are not entitled to increase their bases in the

S corporation by the amount of the corporate indebtedness secured

by the shareholders.    See Calcutt v. Commissioner, 84 T.C. 716,

720 (1985); Erwin v. Commissioner, T.C. Memo. 1989-80.

       While taxpayers are free to organize their affairs as they

choose, once having done so, taxpayers generally are held to the

tax consequences of their choice and may not enjoy the benefit of

some other route that they might have chosen to follow but did

not.    See Commissioner v. National Alfalfa Dehydrating & Milling

Co., 417 U.S. 134, 149 (1974), cited in Selfe v. United States,

778 F.2d 769, 773 (11th Cir. 1985).
                                 - 7 -

     Petitioners herein contend that they are entitled to

increase their tax bases in the Corporation's indebtedness to the

Bank of Amity, to the extent they personally guaranteed and

secured such indebtedness.    Petitioners rely heavily on Selfe v.

United States, supra.     In that case, a bank made a loan to a

taxpayer individually, and the taxpayer secured the loan by a

pledge to the bank of shares of stock in a corporation.    When the

taxpayer later incorporated a business, the above loan was

converted into a loan to the new corporation, accompanied by the

taxpayer's guaranty of the corporation's repayment of the loan to

the bank.

     The Court of Appeals for the Eleventh Circuit held that,

although shareholder guaranties of subchapter S corporate

indebtedness generally will not increase the shareholder’s tax

basis in the corporation, a narrow exception may exist “where the

facts demonstrate that, in substance, the shareholder has

borrowed funds and subsequently advanced them to * * * [the]

corporation.”    Id.   Because material facts remained in dispute,

in Selfe, the Court of Appeals remanded the case to the trial

court to evaluate whether the loan from the bank should be

treated in reality as a loan to the taxpayer and then to the

S corporation.

     By contrast, in the instant cases, the Bank of Amity

extended funds directly to the Corporation, and the Corporation
                              - 8 -

has made all payments on the indebtedness to the bank.

Petitioners could have structured the indebtedness as

indebtedness to themselves, but petitioners chose to avoid

primary liability thereon.

     Petitioners' secondary liability, as guarantors, may have

been necessary for bank approval of the indebtedness, but until

or unless petitioners are called upon to pay on the indebtedness,

petitioners' secondary liability is not enough, for tax purposes,

to treat the indebtedness as if made to petitioners.    Petitioners

have not established that they incurred an economic outlay with

regard to the Corporation's indebtedness to the Bank of Amity,

and petitioners are not entitled to increase their tax bases in

their investments in the Corporation with respect thereto.

     Because assets of the Partnership were transferred to the

Corporation, petitioners also contend that they are entitled to

increase their tax bases in the Corporation (1) by the amount

that the value of the assets the Partnership transferred to the

Corporation exceeds the amount of the Partnership’s liabilities

assumed by the Corporation, (2) by the amount of any Partnership

“equity” transferred to the Corporation, and (3) by the amount of

certain additional amounts allegedly owed to the Partnership.

     In order to avoid recognition of partnership capital gain on

the transfer of assets to the Corporation, the partners of the

Partnership structured the transfer as a sale of assets to the
                                 - 9 -

Corporation for the assumption of the Partnership’s liabilities,

the amount of which was treated as equaling the Partnership's tax

basis in the assets.   The transaction was not structured as a

taxable distribution of partnership assets to the partners

followed by a contribution of the assets to the Corporation with

a stepped-up tax bases.   Petitioners have given us no sufficient

justification for recasting the transaction.

     Even if the value of the Partnership assets that were

transferred to the Corporation exceeded the liabilities of the

Partnership that were assumed by the Corporation, even if

Partnership “equity” was transferred to the Corporation, and even

if the Corporation owed additional amounts to the Partnership,

such excess value, equity, or amounts would not increase the tax

bases of the shareholders in the Corporation.   As explained in

Frankel v. Commissioner, 61 T.C. 343, 348 (1973) (involving the

predecessor to section 1366)--


          The existence of the partnership cannot be ignored
     here even though the partners were simultaneously
     shareholders in the subchapter S corporation. If the
     partners had directly * * * [transferred funds] to the
     subchapter S corporation or treated it as an addition
     to capital, the result would be different.

          The distinctions that exist between partnerships,
     sole proprietorships, and corporations do so from a tax
     viewpoint by design. To treat the partnership * * *
     [transfer] as having been made directly by the partners
     would be to deliberately obfuscate the distinction
     where no such action is called for. [Citations
     omitted.]
                              - 10 -

In the instant cases, the Partnership, not the shareholders of

the S corporation, made the transfer to the Corporation, and only

the Partnership would receive tax bases associated with the

transfer.

     Despite the similar ownership interests of the partners of

the Partnership and of the shareholders of the Corporation,

petitioners, as shareholders in the Corporation, may not increase

their tax bases in their investments in the Corporation for any

purported value of Partnership assets (in excess of the

Partnership’s liabilities assumed), for any purported

Partnership's equity transferred to the Corporation, or for any

amounts owed to the Partnership.

     Further, no credible evidence substantiates the existence of

the additional amounts allegedly owed to the Partnership.   We

sustain respondent's deficiency determinations for each year in

issue.

     Lastly, petitioners contend that the Corporation

underreported income for the years in issue and that the

additional unreported income should increase petitioners' tax

bases in the Corporation.   Petitioners, however, for the years in

issue have provided no credible evidence that the Corporation's

income was underreported.

     Under section 6662(a), taxpayers are subject to accuracy-

related penalties on underpayments with respect to which they
                              - 11 -

were negligent.   Negligence, in the present context, reflects

taxpayers' failure to make reasonable attempts to comply with the

Internal Revenue Code.   See sec. 6662(c).

     Accuracy-related penalties may be avoided if taxpayers show

that the errors were caused, in some significant part, by

detrimental reliance on the advice of qualified tax professionals

and that their reliance was reasonable and in good faith.      See

sec. 6664(c); United States v. Boyle, 469 U.S. 241, 250 (1985);

Stanford v. Commissioner, 152 F.3d 450, 460-461 (5th Cir. 1998),

affg. in part and vacating on this issue 108 T.C. 344 (1997).

     Petitioners employed an accountant to prepare their tax

returns for the years in issue.    Having considered petitioners'

and the accountant's testimony, we conclude that petitioners

reasonably relied on the accountant to ascertain their tax bases

in the indebtedness of the Corporation.    We do not sustain

respondent's imposition of the accuracy-related penalties.

     To reflect the foregoing,

                                      Decisions will be entered for

                                 respondent as to the deficiency

                                 amounts and for petitioners as to

                                 the accuracy-related penalties.
