-7- net operating loss (NOL) carryover from 1989. A substantial portion of the carryover was attributable to the business bad debt deduction claimed by petitioners on Form 1040X for 1989. OPINION In 1990, petitioners claimed an NOL carryover stemming from a business bad debt deduction reported on Form 1040X for 1989. At issue in this case is the deductibility of the carryover claimed by petitioner. The resolution of this issue turns on whether the advance made by petitioner to Tag Coal on August 30, 1984, was a loan or a capital contribution, and, if the payment was a loan, whether it was a business or a nonbusiness loan. We address these issues in turn. 1. Capital contribution issue Section 166 allows a deduction for any bad debt that becomes worthless during the taxable year. A bona fide debt is a debt that arises from a debtor-creditor relationship based upon a valid and enforceable obligation to pay a fixed or determinable sum of money. Sec. 1.166-1(c), Income Tax Regs. This is in contrast to a contribution to capital or equity investment, which is not considered debt for purposes of section 166. Kean v. Commissioner, 91 T.C. 575, 594 (1988); sec. 1.166-1(c), Income Tax Regs. The existence of a bona fide debt is a factual inquiry that turns on the facts and circumstances of the particular case, and the taxpayer bears the burden of proving that a bona fide debtPage: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Next
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