Jerome J. and Beatrice A. Mack - Page 25

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          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.                                                          






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