- 29 - the funds were transferred, there was no intent to repay the advances because there was no fixed time and plan for repayment; no maturity date; no ceiling placed on the advances; no promissory notes; and the documentation provided at audit consisted of backdated corporate minutes, a backdated security agreement, backdated promissory notes, and changed accounting records. Georgiou further asserts that he is entitled to a $76,605 business interest deduction in relation to the advances. Respondent contends that there is no allowable interest deduction because the advances are not loans. Whether advances from a corporation to its shareholder constitute bona fide loans is a factual question and depends on the existence, at the time the advances occurred, of an intent on the shareholder's part to repay the advances and an intent on the corporation's part to enforce the obligations. Berthold v. Commissioner, 404 F.2d 119, 122 (6th Cir. 1968), affg. T.C. Memo. 1967-102. As the state of a taxpayer's mind at a given time in the past is not directly ascertainable, we must consider objective evidence. See Baird v. Commissioner, T.C. Memo. 1982- 220. The issue thus turns upon all of the circumstances surrounding the transactions. Wiese v. Commissioner, 93 F.2d 921 (8th Cir. 1938), affg. 35 B.T.A. 701 (1937). Where the shareholder receiving the advances controls the corporation,Page: Previous 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 Next
Last modified: May 25, 2011