- 6 - their characterization of the advances. Rule 142(a); Welch v. Helvering, 290 U.S. 111 (1933). If petitioners meet their burden of proof, then the advances are not includable in their income. See Falkoff v. Commissioner, 62 T.C. 200, 206 (1974); Arlen v. Commissioner, 48 T.C. 640, 648 (1967). For 1988 only, respondent bears the burden of proving the advances constitute taxable income inasmuch as that is a new matter, first raised in respondent's amended answer. Rule 142(a). Whether the advances should be characterized as loans or payments for services is a factual determination. Beaver v. Commissioner, 55 T.C. 85 (1970); Haber v. Commissioner, 52 T.C. 255 (1969), affd. 422 F.2d 198 (5th Cir. 1970). For a payment to constitute a loan, at the time the funds are transferred, the recipient must intend to repay the advance, and the transferor must intend to enforce repayment. Haag v. Commissioner, 88 T.C. 604, 615-616 (1987), affd. without published opinion 855 F.2d 855 (8th Cir. 1988). Further, the obligation to repay must be unconditional and not contingent upon a future event. United States v. Henderson, 375 F.2d 36, 39-40 (5th Cir. 1967); Bouchard v. Commissioner, 229 F.2d 703 (7th Cir. 1956), affg. T.C. Memo. 1954- 243. An intent to repay a purported loan by the performance of services in the future does not result in the exclusion of the underlying funds from the recipient's income. Beaver v. Commissioner, supra at 91. In such a case, the purported loan proceeds are nothing more than an advance salary or other paymentPage: Previous 1 2 3 4 5 6 7 8 9 10 11 12 Next
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