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 'The mortgagee is a creditor, and in effect nothing more than a preferred creditor, even though the mortgagor is not liable for the debt. He is not the less a creditor because he has recourse only to the land, unless we are to deny the term to one who may levy upon only a part of his debtor's assets.' C.I.R. v. Crane, 2 Cir., 153 F.2d 504, 506. 


Borrowing money against capital appreciation is not 'disposing' of the property to create a taxable event which Sec. 111(a) I.R.C. makes a condition precedent to the taxation of gain. 'Disposition,' within the meaning of Sec. 111(a), is the 'getting rid, or making over, of anything; relinquishment'. Herber's Estate v. Commissioner, 3 Cir., 139 F.2d 756, 758, certiorari denied 322 U.S. 752, 64 S.Ct. 1263, 88 L.Ed. 1582. Nothing of that nature is done by the mere execution of a mortgage even if the mortgage is nonrecourse and greater than the original acquisition value. See Crane case, supra, 153 F.2d at 505-506, ' * * * the lien of a mortgage does not make the mortgagee a cotenant; the mortgagor is the owner for all purposes; ...

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