Carl E. Jones and Elaine Y. Jones - Page 17

                                                -17-                                                  
            published 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, for petitioners to exclude the amounts received from                          
            Development, petitioners must prove that at the time of each                              
            withdrawal, petitioner unconditionally intended to repay the                              
            amounts received and the corporation unconditionally intended to                          
            require payment.  Rule 142(a); Haag v. Commissioner, supra at                             
            615-616; Miele v. Commissioner, 56 T.C. 556, 567 (1971), affd.                            
            without published opinion 474 F.2d 1338 (3d Cir. 1973).                                   
                  Although petitioner asserts that the withdrawals were loans,                        
            a mere declaration by a shareholder that he intended a withdrawal                         
            to constitute a loan is insufficient if the transaction fails to                          
            exhibit more reliable indicia of debt.  Williams v. Commissioner,                         
            627 F.2d 1032, 1034 (10th Cir. 1980), affg. T.C. Memo. 1978-306;                          
            Alterman Foods, Inc. v. United States, 505 F.2d 873, 877 (5th                             
            Cir. 1974).11                                                                             
                  Whether shareholder withdrawals are bona fide loans is a                            
            question of fact, the answer to which must be based upon a                                
            consideration and evaluation of all surrounding circumstances.                            
            Alterman Foods, Inc. v. United States, supra at 875.  Courts have                         

            11                                                                                        
                  In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th                            
            Cir. 1981) (en banc), the Court of Appeals for the Eleventh                               
            Circuit adopted as binding precedent all of the decisions of the                          
            former Court of Appeals for the Fifth Circuit handed down prior                           
            to the close of business on Sept. 30, 1981.                                               



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