J.J. Zand - Page 119

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          Year                Amount                                                  
          1973           $605,500.00                                                  
          1974                387,876.45                                              
          1975           575,000.00                                                   
          1976                265,000.00                                              
          We assume that respondent has conceded both higher sets of                  
          figures and now argues for only those sums that were converted to           
          petitioner's personal use.  These are the figures that are the              
          basis for our holding.                                                      
               Petitioner argues that these withdrawals were not income               
          because they constituted loans to him allegedly with the "full              
          knowledge and agreement of Mr. Khalatbari".  However, there is no           
          documentary evidence in the record to support such an argument.             
          Furthermore, Diesel Power financial statements do not reflect any           
          loans made to shareholders.  Petitioner testified that the amount           
          that was owed became a part of the litigation with Diesel Power             
          and was part of the claim of right which he subsequently reported           
          as income.  As we stated in Gilbert v. Commissioner, 74 T.C. 60,            
          65 (1980), the critical question in resolving the issue of                  
          whether there is a loan "is whether there was a genuine intention           
          to create a debt, which, in turn, depends upon weighing such                
          objective factors as reasonable expectation of repayment and the            
          economic reality of the claimed debtor-creditor relationship."              
          Petitioner has not presented any evidence other than his                    
          testimony or that of his employees to convince us that these                
          withdrawals were loans.  There is no loan agreement or promissory           




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