- -25 The determination of whether an advance was made with such an expectation, belief, and intention depends on all of the facts and circumstances, and generally no one fact is determinative. John Kelly Co. v. Commissioner, 326 U.S. 521, 526 (1946). Facts generally considered when making this determination are: (1) Whether there was a note or other evidence of indebtedness; (2) whether interest was charged; (3) whether there was a fixed schedule for repayments; (4) whether any security or collateral was requested; (5) whether there was a written loan agreement; (6) whether a demand for repayment was made; (7) whether the parties' records, if any, reflected the transaction as a loan; (8) whether any repayments were made; and (9) whether the borrower was solvent at the time of the loan. See Clark v. Commissioner, 18 T.C. 780, 783 (1952), affd. 205 F.2d 353 (2d Cir. 1953). The key factor is whether the parties actually intended and regarded the transaction as a loan. Estate of Van Anda v. Commissioner, 12 T.C. 1158, 1162 (1949), affd. per curiam 192 F.2d 391 (2d Cir. 1951). The burden is on petitioner to establish the existence of a bona fide loan. Petitioner asserts that Mr. Kluzak borrowed $120,000 from him in the early eighties and subsequently made payments of both principal and interest. In 1986 the parties renegotiated the loan by Mr. Kluzak writing a promissory note to petitioner in the amount of $70,000.Page: Previous 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 Next
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