William C. Beretta - Page 13

                                                - 13 -                                                  

            failure of the corporations to repay; and (13) the risk involved                            
            in making the transfers.  Id.                                                               
                  These factors serve only as aids in evaluating whether                                
            transfers of funds to a closely held business should be regarded                            
            as capital contributions or as bona fide loans.  Boatner v.                                 
            Commissioner, T.C. Memo. 1997-379.  No single factor is                                     
            controlling.  Dixie Dairies  Corp. v. Commissioner, supra.  As                              
            expressed by this Court, the ultimate question is "Was there a                              
            genuine intention to create a debt, with a reasonable expectation                           
            of repayment, and did that intention comport with the economic                              
            reality of creating a debtor-creditor relationship?"  Litton                                
            Business Sys., Inc. v. Commissioner, 61 T.C. 367, 377 (1973).                               
                  We find that Mr. Beretta's transfers of funds to the                                  
            entities that controlled the Atascadero and Salinas Peppertree                              
            Restaurants were not loans.  Only the factors material to our                               
            decision will be discussed.                                                                 
                  First, the notes that evidenced the contributions to HRB                              
            Enterprises had no maturity date.  The absence of a maturity date                           
            with respect to a note weighs against finding that the transfers                            
            were loans.  Stinnett's Pontiac Serv., Inc. v. Commissioner, 730                            
            F.2d 634, 638 (11th Cir. 1984), affg. T.C. Memo. 1982-314.                                  
                  Second, the source of “repayments” for the transfers was                              
            highly unusual.  Mr. Beretta had employees skim money directly                              
            from the cash registers on his behalf.  No repayment schedule                               





Page:  Previous  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  Next

Last modified: May 25, 2011