                    131 T.C. No. 17



                UNITED STATES TAX COURT



      IRA NATHEL AND TRACY NATHEL, Petitioners v.
     COMMISSIONER OF INTERNAL REVENUE, Respondent

   SHELDON NATHEL AND ANN M. NATHEL, Petitioners v.
     COMMISSIONER OF INTERNAL REVENUE, Respondent



Docket Nos. 17203-06, 17204-06.   Filed December 17, 2008.



     In calculating ordinary income relating to
$1,622,050 in loan payments received from two S
corporations, for purposes of sec. 1366(a)(1), I.R.C.,
petitioners treated $1,437,248 in capital contributions
they made to the S corporations as income to the S
corporations and as restoring or increasing under sec.
1367(b)(2)(B), I.R.C., their tax bases in loans
petitioners previously had made to the S corporations.
Petitioners then used the restored or increased tax
bases in the loans they made to the S corporations to
offset ordinary income that otherwise would have been
reportable by petitioners on their receipt from the S
corporations of the $1,622,050 loan payments. On
audit, respondent determined that petitioners’
$1,437,248 capital contributions were not to be treated
as restoring or increasing petitioners’ tax bases in
their loans to the S corporations but as increasing
                               - 2 -
     petitioners’ tax bases in their stock in the S
     corporations, resulting in additional ordinary income
     being charged to petitioners on receipt of the S
     corporation loan payments.

          Held, among other things: For purposes of sec.
     1366(a)(1), I.R.C., petitioners’ $1,437,248 capital
     contributions to the S corporations do not constitute
     income to the S corporations and under sec.
     1367(b)(2)(B), I.R.C., petitioners’ capital
     contributions do not restore or increase petitioners’
     tax bases in their loans to the S corporations.



     Hugh Janow, for petitioners.

     Donald A. Glasel, for respondent.



                              OPINION

     SWIFT, Judge:   Respondent determined deficiencies in the

respective amounts of $279,847 and $279,722 in petitioners Ira

and Tracy Nathel’s and in petitioners Sheldon and Ann M. Nathel’s

2001 joint Federal income taxes.    These cases have been

consolidated for purposes of briefing and opinion.

     In calculating petitioners’ ordinary income on receipt of

$1,622,050 in loan payments that petitioners received from two S

corporations, the underlying issues for decision are whether for

purposes of section 1366(a)(1) petitioners’ $1,437,248 in capital

contributions to the S corporations may be treated by petitioners

as income to the S corporations and therefore as restoring or

increasing petitioners’ tax bases in the loans they made to the S

corporations or, alternatively if the answer to the above issue
                                - 3 -
is in the negative, whether capital contributions of $1,074,456

petitioners made to one of the S corporations may be treated by

petitioners as deductible ordinary losses under section 165(c)(1)

or (2).

     Unless otherwise indicated, all section references are to

the Internal Revenue Code in effect for 2001, and all Rule

references are to the Tax Court Rules of Practice and Procedure.


                             Background

     The facts of these cases were submitted fully stipulated,

and these cases are submitted under Rule 122.

     At the time the petitions were filed, petitioners resided in

New York.

     Petitioners Ira and Sheldon Nathel (petitioners1) are

brothers.    Before 1999 petitioners and an individual named Gary

Wishnatzki (Gary) organized three S corporations to operate food

distribution businesses in New York, California, and Florida.

The corporations were named G&D Farms, Inc. (G&D), Wishnatzki &

Nathel, Inc. (W&N), and Wishnatzki & Nathel of California, Inc.

(W&N CAL).

     Petitioners and Gary made capital contributions to each of

the S corporations, and each petitioner owned 25 percent and Gary



     1
        Petitioners Tracy and Ann Nathel are named petitioners
solely because they filed joint Federal income tax returns with
their husbands. References to petitioners are to Ira and Sheldon
Nathel.
                               - 4 -
owned 50 percent of the shares of stock in each of the S

corporations.   In addition, petitioners each made loans to G&D

and to W&N CAL on open account.2

     During 1999, 2000, and 2001 petitioners were employed as

officers of W&N and petitioners received from W&N substantial

compensation.   Petitioners were not employed by either G&D or by

W&N CAL, and petitioners received no salary or wages from G&D or

W&N CAL.

     Petitioners were not in the trade or business of providing

guaranties on loans.

     In June 1999 G&D borrowed approximately $2.5 million from

two banks (bank loans).   As collateral on the bank loans,

petitioners and Gary each personally guaranteed the bank loans.

Petitioners did not receive any compensation for guaranteeing the

bank loans.

     As a result of losses realized by G&D and W&N CAL in years

prior to 2001 (which losses under section 1367(a)(2) reduced

petitioners’ tax bases in their stock in and in their loans to

G&D and W&N CAL), as of January 1, 2001, petitioners’ tax bases

in their stock in and in their loans to G&D and W&N CAL were as

follows:3



     2
        The record does not reflect whether petitioners made
loans to W&N.
     3
        No issue is raised herein as to petitioners’ tax bases in
their stock in W&N.
                                - 5 -

                                 Jan. 1, 2001, Tax Bases
                         In Stock In              In Loans To
  Petitioner           G&D      W&N CAL         G&D       W&N CAL

Ira Nathel             $0         $0          $112,547      $3,603
Sheldon Nathel          0          0           112,547       3,603


       On February 2, 2001, G&D made payments to each petitioner of

$649,775 on the loans petitioners made to G&D.

       In the spring and summer of 2001 disagreements arose between

petitioners and Gary relating to the business plans for G&D, W&N,

and W&N CAL, and petitioners and Gary decided to terminate their

business association through a reorganization of G&D, W&N, and W&N

CAL.

       In implementing the reorganization, on August 30, 2001,

petitioners and Gary entered into a number of essentially

simultaneous transactions which resulted in Gary owning 100

percent of G&D, in petitioners owning 100 percent of W&N (each

petitioner owning 50 percent), and in the liquidation of W&N CAL.

       As part of the reorganization, on August 30, 2001,

petitioners and Gary each made significant additional capital

contributions to G&D and W&N CAL for the reasons and as described

below.

       In connection with the release of petitioners’ guaranties on

the bank loans, with Gary’s assumption of the guaranties on the

bank loans, and with Gary’s agreement to the general plan of
                                   - 6 -
reorganization of G&D, W&N, and W&N CAL, each petitioner made

additional capital contributions to G&D of $537,228.

        In order to provide funds to W&N CAL so that W&N CAL could

repay outstanding third-party loans of $725,586, each petitioner

also made additional capital contributions to W&N CAL of $181,396

and Gary made additional capital contributions to W&N CAL of

$362,794.

        Following petitioners’ and Gary’s additional capital

contributions, petitioners’ stock in G&D and Gary’s stock in W&N

were redeemed without petitioners’ and Gary’s receiving any

payment therefor, petitioners’ guaranties were released, and Gary

was left as sole guarantor on the G&D bank loans.

        Further, on August 30, 2001, W&N CAL made payments to

each petitioner of $161,250 on the loans petitioners made to W&N

CAL.4       W&N CAL was then liquidated, and petitioners received

nothing in the liquidation.

        In summary, after the reorganization of G&D, W&N, and W&N

CAL, Gary owned 100 percent of G&D, petitioners each owned 50

percent of W&N, petitioners’ guaranties on the bank loans were

released, Gary was left as the sole guarantor on the bank loans,

and W&N CAL was liquidated.




        4
        The loan payments each petitioner received in 2001 of
$649,775 from G&D and $161,250 from W&N CAL equal total loan
payments to both petitioners of $1,622,050.
                              - 7 -
     In the books and records of G&D and W&N CAL, petitioners’

total August 30, 2001, capital contributions of $1,437,248 to G&D

and to W&N CAL were reflected as contributions to the capital of

G&D and W&N CAL.

     In calculating petitioners’ ordinary gain realized on receipt

from G&D and from W&N CAL of the $1,622,050 loan payments,

petitioners’ August 30, 2001, capital contributions to G&D and to

W&N CAL were treated by petitioners as constituting income under

section 1366(a)(1) to G&D and W&N CAL (albeit as excludable income

under section 118) and therefore as restoring or increasing under

section 1367(b)(2)(B) petitioners’ respective tax bases in the

outstanding loans each petitioner made to G&D and W&N CAL as

follows:


                                     Each Petitioner’s Tax
                                      Bases in Loans To
                                 G&D and W&N CAL Increased
     Loans To                      From               To
     G&D                         $112,546          $649,775
     W&N CAL                        3,603           184,999


     On petitioners’ respective 2001 individual Federal income tax

returns, petitioners used the above increased tax bases in their

loans to G&D and W&N CAL to offset all ordinary5 income that

otherwise would have been reportable upon their receipt in 2001 of

the $1,622,050 loan payments from G&D and W&N CAL.


     5
        Petitioners do not dispute that income petitioners
received in 2001 in connection with the $1,622,050 loan payments
from G&D and W&N CAL is ordinary income.
                              - 8 -
     On audit respondent determined that petitioners’ August 30,

2001, $1,437,248 capital contributions to G&D and W&N CAL should

be treated simply as capital contributions by petitioners to G&D

and W&N CAL and as increasing petitioners’ tax bases in their

stock in G&D and W&N CAL and not as restoring or increasing under

sections 1366(a)(1) and 1367(b)(2)(B) petitioners’ tax bases in

the loans petitioners made to G&D and W&N CAL.   Accordingly,

respondent adjusted or reduced petitioners’ tax bases in the loans

petitioners had made to G&D and W&N CAL as set forth below:



                                 Each Petitioner’s
          Loans To             Tax Bases Reduced To
          G&D                        $112,546
          W&N CAL                       3,603


     On the basis of respondent’s reductions in petitioners’ tax

bases in the loans to G&D and W&N CAL, respondent determined that

each petitioner was chargeable with $694,875 in ordinary income

relating to the $1,622,050 loan payments petitioners received in

2001 from G&D and W&N CAL.6

     Respondent’s above determinations resulted in the

deficiencies determined against petitioners for 2001.




     6
        Because respondent determined that petitioners’ Aug. 30,
2001, $1,437,248 capital contributions to G&D and W&N CAL
increased petitioners’ tax bases in their stock in G&D and W&N
CAL, respondent also determined that each petitioner realized a
$718,624 long-term capital loss on the Aug. 30, 2001, redemption
and liquidation of their stock in G&D and W&N CAL.
                               - 9 -
                             Discussion

     Generally, a shareholder in an S corporation has a tax basis

in his stock equal to the amount of the contributions he makes to

the capital of the S corporation, and the shareholder’s capital

contributions are not included in the income of the S corporation.

Secs. 118, 1016(a)(1), 1371(a); Commissioner v. Fink, 483 U.S. 89,

94 (1987); Edwards v. Cuba R.R. Co., 268 U.S. 628, 633 (1925);

Ellinger v. United States, 470 F.3d 1325, 1329 (11th Cir. 2006);

Maloof v. Commissioner, 456 F.3d 645, 648 (6th Cir. 2006), affg.

T.C. Memo. 2005-75; Sleiman v. Commissioner, 187 F.3d 1352, 1356

(11th Cir. 1999), affg. T.C. Memo. 1997-530; sec. 1.118-1, Income

Tax Regs.

     A shareholder in an S corporation also has a tax basis in

loans the shareholder makes to the S corporation equal to the

amount of the loans.   Secs. 1012, 1366(d)(1)(B).

     Generally, under section 1367 a shareholder’s tax bases in

the stock in, and in the loans to, an S corporation are adjusted

to reflect the shareholder’s share of income, losses, deductions,

and credits of the S corporation as calculated under section

1366(a)(1).

     More specifically, under section 1367(a)(1) a shareholder’s

tax basis in stock in an S corporation is increased by, among

other things, the shareholder’s share of the S corporation’s
                             - 10 -
income items (including “tax-exempt income”7), and under section

1367(a)(2) a shareholder’s tax basis in his stock in an S

corporation is decreased (but not below zero) by, among other

things, the shareholder’s share of losses and deductions.

     If a shareholder’s tax basis in his stock in an S corporation

is reduced to zero by his share of the losses of the S

corporation, any further share of the S corporation’s losses

decreases, but not below zero, the shareholder’s tax basis in

outstanding loans the shareholder has made to the S corporation.

Sec. 1367(b)(2)(A); sec. 1.1367-2(b)(1), Income Tax Regs.    Thus, a

shareholder’s tax basis in loans the shareholder has made to an S

corporation may be lower than their face amount or zero because of

downward adjustments in such basis caused by losses of the

S corporation that are passed through to the shareholder.    Sec.

1367(b)(2)(A).

     Any “net increase”8 in a year in a shareholder’s share of an

S corporation’s income is applied first to restore or increase the

shareholder’s tax basis in loans the shareholder made to the S

corporation (to the extent such loan basis was reduced in prior


     7
         Sec. 1.1366-1(a)(2)(viii), Income Tax Regs., defines
“tax-exempt income” for purposes of sec. 1366(a)(1) as income
which is permanently excluded from gross income. This regulation
was effective Aug. 18, 1998. T.D. 8852, 2000-1 C.B. 253.
     8
        “[N]et increase” is defined as the amount by which the
shareholder’s pro rata share of the items described in sec.
1367 (a)(1) (relating to income items) exceed the items described
in sec. 1367(a)(2) (relating to losses and deductions) for the
taxable year. Sec. 1.1367-2(c)(1), Income Tax Regs.
                             - 11 -
years) and is then applied to increase the shareholder’s tax basis

in his stock in the S corporation.    Sec. 1367(b)(2)(B); sec.

1.1367-2(c)(1), Income Tax Regs.

     The above section 1367(b)(2)(B) shareholder tax basis

adjustments affect the amount of gain or loss realized by a

shareholder on a subsequent sale, redemption, or liquidation of

the shareholder’s stock in the S corporation, as well as the

amount of ordinary income realized by the shareholder on the S

corporation’s payments on loans to the shareholder.    See secs.

302(b)(3), 1001(a), 1221; Cornelius v. Commissioner, 58 T.C. 417,

422 (1972), affd. 494 F.2d 465 (5th Cir. 1974).

     Petitioners acknowledge that their August 30, 2001,

$1,437,248 capital contributions were made by them to G&D and W&N

CAL as capital contributions and that as such the capital

contributions generally would be included in the tax bases of

their stock in G&D and W&N CAL and would not be included in the

income of G&D or W&N CAL.

     Petitioners have not cited nor have we found any cases where

a shareholder’s capital contributions to an S corporation are

treated as income to the S corporation.

     In support of the treatment, however, of their August 30,

2001, $1,437,248 capital contributions as “income” to G&D and W&N

CAL, petitioners argue that because section 118 excludes capital

contributions from the gross income of an S corporation in all

circumstances, capital contributions to an S corporation are
                              - 12 -
“permanently excludible” from the gross income of the S

corporation and are thus “tax-exempt income” under section 1.1366-

1(a)(2)(viii), Income Tax Regs., and that “tax-exempt income” is

to be included as an item of income to the S corporation for

purposes of section 1366(a)(1) and the resulting section 1367 tax

basis adjustments.

     In support of their argument petitioners rely on Gitlitz v.

Commissioner, 531 U.S. 206, 216 (2001), in which the Supreme Court

held that income received by an insolvent S corporation from

discharge of indebtedness, excluded from gross income under

section 108(a), is to be treated as an item of income to the

corporation for purposes of section 1366(a)(1).   Petitioners argue

that the Gitlitz holding should apply not only to discharge of

indebtedness income, excludable from corporate income under

section 108(a), but also to other items of income which are

specifically excluded from gross income of an S corporation under

sections 101 through 136, such as section 118.

     Petitioners rely on the following language from the Supreme

Court’s opinion in Gitlitz:



     Section 108(a) * * * does not say that discharge
     of indebtedness ceases to be an item of income
     when the S corporation is insolvent. Instead
     * * * [section 108(a)] provides only that discharge of
     indebtedness ceases to be included in gross income.
     * * * Moreover, §§ 101 through 136 employ the same
     construction [as section 108] to exclude various items
     from gross income: “Gross income does not include....”
     * * *
                              - 13 -
     * * * If discharge of indebtedness of insolvent
     entities were not actually “income,” there would be no
     need to provide an exception to its inclusion in gross
     income. * * * [Id. at 213-214.]


     By attempting to treat petitioners’ capital contributions to

G&D and W&N CAL as income to G&D and W&N CAL, petitioners in

effect seek to undermine three cardinal and longstanding

principles of the tax law:   First, that a shareholder’s

contributions to the capital of a corporation increase the basis

of the shareholder’s stock in the corporation; see Commissioner v.

Fink, supra at 94; sec. 1.118-1, Income Tax Regs.; second, that

equity (i.e., a shareholder’s contribution to the capital of a

corporation) and debt (i.e., a shareholder’s loan to the

corporation) are distinguishable and are treated differently by

both the Code and the courts; see Estate of Mixon v. United

States, 464 F.2d 394 (5th Cir. 1972); Dixie Dairies Corp. v.

Commissioner, 74 T.C. 476, 493 (1980); compare sec. 163(a) with

sec. 301(c); and third, that contributions to the capital of a

corporation do not constitute income to the corporation; sec. 118;

Commissioner v. Fink, supra at 94; Edwards v. Cuba R.R. Co., supra

at 633 (holding that a contribution to a corporation’s capital is

not income to the corporation under the Sixteenth Amendment);

Ellinger v. United States, supra at 1329; Sleiman v. Commissioner,

supra at 1356; sec. 1.118-1, Income Tax Regs.

     We do not believe that the Gitlitz holding or the provisions

of subchapter S, namely sections 1366(a)(1), 1367(a)(1)(A), and
                               - 14 -
1367(b)(2)(B), should be interpreted to override these three

longstanding principles of tax law.

     The Gitlitz holding as to the treatment of discharge of

indebtedness income as income to the S corporation under section

1366(a)(1) is distinguishable from the treatment of capital

contributions made by a shareholder of an S corporation under

section 118.   In particular, under section 61(a)(12) discharge of

indebtedness income is specifically included in the definition of

“gross income”.   Unlike income from discharge of indebtedness,

contributions to the capital of an S corporation are not listed in

section 61 as an item of gross income.

     Further, the regulations under section 118 specifically

provide that capital contributions do not constitute income to an

S corporation.    In relevant part, section 1.118-1, Income Tax

Regs., provides that “if a corporation requires additional funds

for conducting its business and obtains such funds through * * *

payments by its shareholders * * * such amounts do not constitute

income”.

     Also, in Black’s Law Dictionary 209 (6th ed. 1990), “capital

contribution” is defined as:


          Various means by which a shareholder makes
     additional funds available to the corporation (i.e.,
     placed at the risk of the business) without the receipt
     of additional stock. Such contributions are added to the
     basis of the shareholder’s existing stock investment and
     do not generate income to the corporation. * * *
                              - 15 -
     On the basis of the above, petitioners’ capital contributions

to G&D and W&N CAL are distinguishable from the discharge of

indebtedness income that was at issue in Gitlitz.

     We conclude that the Gitlitz holding that an S corporation’s

discharge of indebtedness income is to be treated as income to the

S corporation for purposes of section 1366(a)(1) does not require

that shareholder capital contributions to an S corporation are to

be treated as income to the S corporation under section

1366(a)(1).

     Petitioners also rely on Am. Med. Association v. United

States, 887 F.2d 760, 774-775 (7th Cir. 1989), in which the U.S.

Court of Appeals for the Seventh Circuit held that a portion of

annual membership fees placed in a nonprofit organization’s equity

or capital account was to be treated as current income, not as

noncurrent income or capital contributions to the organization.

See also Wash. Athletic Club v. United States, 614 F.2d 670, 675

(9th Cir. 1980).

     Both Am. Med. Association and Wash. Athletic Club are

distinguishable.   The funds placed in equity accounts in those

cases were not paid to the nonprofit organizations as capital

contributions, and they represented payments by the members for

current year memberships, not to fund deferred capital

expenditures of the organizations.

     Petitioners also emphasize that section 1371(a) provides that

“Except as otherwise provided in * * * [subchapter S] and except
                              - 16 -
to the extent inconsistent with * * * [subchapter S],” the

provisions of subchapter C are to apply to an S corporation, and

petitioners argue that because section 1366(a)(1) of subchapter S

provides a special rule for passing through to the shareholders

items of income of the S corporation, the subchapter C general

rules relating to the calculation of tax basis and to capital

contributions should not apply to shareholders of S corporations.

We disagree.

     Before petitioners can calculate their tax bases in their

loans under sections 1366(a)(1) and 1367(b)(2)(B), the gross

income of both G&D and W&N CAL must be calculated.   Sec.

1366(a)(1)(A).   In making that gross income calculation the

provisions of section 61 (regarding gross income) and the

provisions of sections 101 through 136 (regarding specific

exclusions from gross income such as the exclusion under section

118 of capital contributions to a corporation) apply.   Sec.

1363(b).   Once the gross income of G&D and of W&N CAL are

calculated, section 1366(a)(1) and section 1367(b)(2)(B) apply in

the calculation of petitioners’ share of G&D and of W&N CAL’s

income and in the calculation of petitioners’ tax bases in their

stock in and in their loans to G&D and W&N CAL.

     Thus, the provisions of section 118 apply in the calculation

of an S corporation’s gross income under section 1363(b) before

the calculation of a shareholder’s share of the income and losses

of an S corporation under section 1366(a)(1) and before
                             - 17 -
adjustments to a shareholder’s tax basis under section

1367(b)(2)(B), and the provisions of section 118 are not

inconsistent with the provisions of subchapter S.

     We conclude that shareholder capital contributions are not to

be treated as items of income to an S corporation under section

1366(a)(1) and are not to be treated as items of income used in

calculating a “net increase” under section 1367(b)(2)(B) for the

purpose of restoring or increasing a shareholder’s tax basis in

loans a shareholder made to an S corporation.

     Petitioners’ $1,437,248 capital contributions to G&D and W&N

CAL do not constitute “tax-exempt income” to G&D and W&N CAL under

section 1366(a)(1) or section 1.1366-1(a)(2)(viii), Income Tax

Regs., and do not restore or increase petitioners’ tax bases in

their loans to G&D and to W&N CAL under section 1367(b)(2)(B).

     In the alternative, petitioners contend that petitioners’

August 30, 2001, $1,074,456 capital contributions to G&D were made

exclusively to obtain a release of petitioners’ personal

guaranties on G&D’s bank loans and that the capital contributions

to G&D should be deductible as ordinary losses under section

165(c)(1) or (2).9

     Section 165(c)(1) provides that a taxpayer may deduct losses

incurred in a trade or business, and section 165(c)(2) provides



     9
        Petitioners’ alternative loss argument relates only to
petitioners’ $1,074,456 Aug. 30, 2001, capital contributions to
G&D.
                             - 18 -
that a taxpayer may deduct losses that were incurred in a

transaction entered into for profit.

     Petitioners stipulated that they were not in the trade or

business of providing loan guarantees, that they did not receive

any compensation for guaranteeing the bank loans, and that they

received no salary or wages from G&D.   There is no credible

evidence that petitioners guaranteed the bank loans for the

purpose of making a profit therefrom.   On the facts before us, we

can only conclude, as we do, that petitioners’ guarantees on the

bank loans arose out of and related to each petitioner’s status as

a shareholder in G&D.

     Petitioners refer us to several old cases in which courts

have held that a shareholder payment made to a corporation or a

third party for the release from liability as a guarantor may be

deductible as losses incurred in a transaction entered into for

profit.

     In Lloyd-Smith v. Commissioner, 40 B.T.A. 214, 223 (1939),

affd. 116 F.2d 642 (2d Cir. 1941), the Board of Tax Appeals held

that expenditures by a taxpayer in connection with readjustment of

her liability as a guarantor of bonds qualified as deductible

losses on a transaction entered into for profit because the

taxpayer incurred the expenditures for the sole purpose of

reducing her liability as guarantor.

     In Stamos v. Commissioner, 22 T.C. 885, 888 (1954), we held

that a taxpayer’s legal fees incurred for the sole purpose of
                             - 19 -
obtaining release of a loan guaranty qualified as deductible

losses on a transaction entered into for profit.

     In Rushing v. Commissioner, 58 T.C. 996, 1001 (1972), we

noted:


     [The Tax] Court has held that certain payments which had
     their genesis in * * * [a taxpayer’s] status as [guarantor]
     were payments which resulted in losses incurred in a
     transaction entered into for profit, deductible under section
     165(c)(2). See, for example, * * * Shea [v. Commissioner],
     36 T.C. 577 (1961), affirmed per curiam 327 F.2d 1002 (C.A.
     5, 1964) * * *.


     In Shea v. Commissioner, 36 T.C. 577, 582-583 (1961), affd.

327 F.2d 1002 (5th Cir. 1964), the Court held that a taxpayer’s

payments to third parties for the sole purpose of obtaining a

release from his liability on a corporate guaranty qualified as

deductible losses under section 165(c)(2).

     In Condit v. Commissioner, 333 F.2d 585, 586-587 (10th Cir.

1964), affg. 40 T.C. 24 (1963), the fact that a taxpayer’s

“purpose * * * was to be relieved from personal liability as

guarantor on debts” was key to the court’s holding that an

assignment of the taxpayer’s stock to another shareholder was to

be treated as a loss incurred in a transaction entered into for

profit and thus as a deductible loss under section 165(c)(2).

     Petitioners’ August 30, 2001, $1,074,456 capital

contributions to G&D are distinguishable from the payments

involved in the above cases because petitioners clearly had

multiple purposes in making the capital contributions to G&D.
                              - 20 -
Petitioners stipulated that they made their August 30, 2001,

$1,074,456 capital contributions to G&D in connection with the

banks’ release of petitioners’ guaranties on the bank loans, with

Gary’s assumption of responsibility as guarantor on the bank

loans, and with Gary’s agreement to the reorganization of G&D,

W&N, and W&N CAL.   Thus, petitioners did not make the August 30,

2001, capital contributions to G&D for the sole purpose of being

released from their guarantees on the bank loans.

     In Duke v. United States, 39 AFTR 2d 77-847, 77-1 USTC par.

9178 (S.D.N.Y. 1977), the District Court held that because the

taxpayer made payments in exchange both for the release of the

taxpayer’s guaranty of a corporation’s debt and for the

contemporaneous sale of the taxpayer’s stock, the taxpayer did not

make the payments solely in exchange for the release of the

taxpayer’s guaranty and the taxpayer was not allowed to deduct the

payments as ordinary losses under section 165(c).

     We conclude that petitioners’ August 30, 2001, $1,074,456

capital contributions to G&D were not incurred in a trade or

business under section 165(c)(1) and were not incurred in a

transaction entered into for profit under section 165(c)(2).

     Petitioners are not entitled to an ordinary loss deduction

under section 165(c)(1) or (2) relating to their $1,074,456 G&D

capital contributions.
                        - 21 -


To reflect the foregoing,


                                 Decisions will be entered

                            for respondent.
