Mark D. and Sheldon C. Morgan - Page 6

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          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 payment           




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