Barry B. Bealor and Nancy L. Bealor, et al. - Page 52

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          you to testify to the true facts that you knew that you were at             
          risk for $137,500.00 and that you expected to earn 13% on your              
          investment which would be more than enough to pay your note".               
               The entire record shows that any such hopes and expectations           
          were without foundation.38                                                  
          II. The Pettisanis Are Not Entitled to Deductions for Interest              
               Claimed on Their Long-Term Notes                                       
               In order for interest to be deductible under section 163(a),           
          the underlying indebtedness must be genuine.  Knetsch v. United             
          States, 364 U.S. 361 (1960).  The presence of deferred debt that            
          is not likely to be paid is an indication of a lack of economic             
          substance.  Id.; Waddell v. Commissioner, 86 T.C. 848, 902                  
          (1986), affd. per curiam 841 F.2d 264 (9th Cir. 1988); Estate of            
          Baron v. Commissioner, 83 T.C. 542, 552-553 (1984), affd. 798               
          F.2d 65 (2d Cir. 1986).  Therefore, where a debt transaction is             
          not conducted at arm's length by two economically self-interested           
          parties, or where a debt is incurred in "peculiar circumstances"            
          indicating that it will not be paid, we have disregarded that               

          38The nonexclusive list of nine factors for determining the                 
          presence or absence of a profit motive listed in sec. 1.183-2(b),           
          Income Tax Regs., has often been used for determining the                   
          presence or absence of a business purpose in an alleged sham.               
          Hildebrand v. Commissioner, 28 F.3d 1024, 1027 (10th Cir. 1994),            
          affg. Krause v. Commissioner, 99 T.C. 132 (1992); Smith v.                  
          Commissioner, 937 F.2d 1089, 1093 (6th Cir. 1991), revg. and                
          remanding 91 T.C. 733 (1988); Campbell v. Commissioner, 868 F.2d            
          833, 836 (6th Cir. 1989), affg. in part, revg. in part, and                 
          remanding T.C. Memo. 1986-569.  A detailed examination of these             
          factors would result in a decision against petitioners.  Factor             
          (1) (manner in which taxpayer carries on the activity) in                   
          particular weighs heavily against petitioners.                              




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