-47- opinion 855 F.2d 855 (8th Cir. 1988); Litton. Bus. Sys., Inc. v. Commissioner, 61 T.C. 367, 377 (1973); see also Haber v. Commissioner, 52 T.C. 255, 266 (1969), affd. 422 F.2d 198 (5th Cir. 1970); Saigh v. Commissioner, 36 T.C. 395, 419 (1961). Thus, before the value of decedent's estate may be reduced for the alleged debt, petitioner must prove that at the time of each transfer, decedent and the JKH Trust agreed that decedent would borrow $50,000, that decedent unconditionally intended to repay that amount to the JKH Trust, and that the JKH Trust intended to unconditionally secure repayment. Rule 142(a); Welch v. Helvering, 290 U.S. at 115. The determination of whether a transfer was made with a real expectation of repayment and an intention to enforce the debt depends on all the facts and circumstances including whether: (1) There was a promissory note or other evidence of indebtedness, (2) interest was charged, (3) there was security or collateral, (4) there was a fixed maturity date, (5) a demand for repayment was made, (6) any actual repayment was made, (7) the transferee had the ability to repay, (8) any records maintained by the transferor and/or the transferee reflected the transaction as a loan, and (9) the manner in which the transaction was reported for Federal tax is consistent with a loan. See Zimmerman v. United States, 318 F.2d 611, 613 (9th Cir. 1963); Estate of Maxwell v. Commissioner, 98 T.C. 594, 604 (1992), affd. 3 F.3d 591 (2d Cir. 1993); Estate of Kelley v. Commissioner, 63 T.C.Page: Previous 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 Next
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