11 In Estate of Leavitt v. Commissioner, supra, the Court of Appeals for the Fourth Circuit, affirming the Tax Court, refused to find that the taxpayers had bases in loans from a bank to an S corporation where the taxpayers had personally guaranteed those loans. At the time of the loan, the corporation's liabilities exceeded its assets, it had virtually no cash flow, and it offered no assets as collateral. The bank would not have made the loan without the shareholder guaranties. The corporation's returns and financial statements reflected that the loan was from the shareholders. The court focused on how the parties actually treated the loan, not on how they nominally reported it on their returns and financial statements. The corporation paid the principal and interest to the bank, and neither the corporation nor the shareholders treated the corporate payments on the loan as corporate payments to the shareholders. The taxpayers argued that the loan was in substance a loan to them and then a subsequent loan to the corporation. The court found the taxpayers' position inconsistent with the true form of the transaction and concluded that there had been no economic outlay, as the shareholders had not been called upon to make payment on the guaranty. We must decide here whether there was a legitimate debt between petitioner and DRPC. With regard to the bank notes, DRPC paid some of the principal payments and guaranty fees. Without the guaranty of Don Test, Frost Bank would not have made thePage: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Next
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