- 12 - taxpayer's dominant motivation; a significant motivation is not sufficient. United States v. Generes, 405 U.S. 93, 103 (1972). The relationship between a debt and the taxpayer's trade or business is a question of fact. B.B. Rider Corp. v. Commissioner, 725 F.2d 945, 948 (3d Cir. 1984), affg. in part and vacating in part T.C. Memo. 1982-98. In other words, the determination of the taxpayer's dominant motive is a factual one. Hough v. Commissioner, 882 F.2d 1271, 1276 (7th Cir. 1989), affg. T.C. Memo. 1986-229. The question of dominant motive is ascertained as of the time the loan or guaranty is made. Harsha v. United States, 590 F.2d 884, 886 (10th Cir. 1979). The loss from a direct loan to a corporation or from the guaranty of a loan is evaluated under the same dominant motive standard. B.B. Rider Corp. v. Commissioner, supra at 948. When the creditor or guarantor of a corporate debt is a shareholder/investor and also an employee, mixed motives for the loan and guaranty are present, and the critical issue becomes which motive is dominant. United States v. Generes, supra at 100. Investing is not a trade or business. Whipple v. Commissioner, 373 U.S. 193, 202 (1963). The rewards of investing are "expectative"; that is, the rewards result from appreciation and earnings on the investment rather than from personal effort or labor. United States v. Generes, supra at 100-101. One's role or status as an employee is a business interest. Id. atPage: Previous 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Next
Last modified: May 25, 2011