Wayne L. Patrick - Page 9

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          loan, by its terms, must be repaid within 5 years from the date             
          of its inception or is made to finance the acquisition of a home            
          which is the principal residence of the participant; and (3) the            
          loan must have substantially level amortization with quarterly or           
          more frequent payments required over the term of the loan.                  
          Section 72(p)(2) applies only to distributions that are intended            
          to be loans.                                                                
               Respondent argues that the transfers from the Plan were                
          taxable distributions and not loans.  In support, respondent                
          cites the following factors:  In all cases in which the notes               
          were signed, the notes were signed well after the transfers were            
          made; petitioners presented no evidence, other than copies of the           
          notes, that the Plan, the Plan administrator, the Plan trustee,             
          or petitioners maintained any records reflecting the transfers as           
          loans; any repayments on the notes, if in fact made, were                   
          insignificant; there was at no time a demand for repayment and no           
          steps were taken to enforce the notes; neither petitioner had the           
          ability to repay the transferred funds; and the notes were                  
          between related parties and the form of the transaction should              
          not be honored where it lacks economic reality.  In response,               
          petitioners argue that sufficient "indicia of debt" are present             
          to justify characterizing the transfers as loans.                           
               A transfer of money will be characterized as a loan for                
          Federal income tax purposes where "'at the time the funds were              





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