- 8 - motion to quash to the date of entry of the court's order was 83 days. Thus, even without taking into account the period during which the petition to quash the original summons was pending, or the period for an appeal, we find that the notice of deficiency was issued to petitioners within the period of limitations. See sec. 7609(e)(1). The second issue for decision is whether petitioners had $15,000 of unreported Schedule C income for 1991. Petitioners contend that the funds in question were loans from the Herkeios Group. Borrowed funds are excluded from a taxpayer's gross income, "because the taxpayer's obligation to repay the funds offsets any increase in the taxpayer's assets". United States v. Centennial Sav. Bank FSB, 499 U.S. 573, 582 (1991). The hallmarks of a loan are: (1) Consensual recognition between the borrower and the lender of the existence of the loan (i.e., the obligation to repay); and (2) a bona fide intent on the part of the borrower to repay the funds advanced. Collins v. Commissioner, 3 F.3d 625, 631 (2d Cir. 1993), affg. T.C. Memo. 1992-478. Whether a debtor-creditor relationship exists is a question of fact. Beaver v. Commissioner, 55 T.C. 85, 91 (1970); Fisher v. Commissioner, 54 T.C. 905, 909 (1970). Petitioners bear the burden of proof. Rule 142(a); Welch v. Helvering, 290 U.S. 111, 115 (1933).Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 Next
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