- 11 - Smith v. Commissioner, 370 F.2d 178, 180 (6th Cir. 1966), affg. T.C. Memo. 1964-278; Haag v. Commissioner, supra at 616 n.6. The above factors are not exclusive, and no one factor is dispositive. See John Kelley Co. v. Commissioner, 326 U.S. 521, 530 (1946); Smith v. Commissioner, supra. The factors are simply objective criteria helpful to the Court in analyzing all relevant facts and circumstances. The ultimate question remains whether "there [was] a genuine intention to create a debt, with a reasonable expectation of repayment, and did that intention comport with the economic reality of creating a debtor-creditor relationship". Litton Bus. Sys. Inc. v. Commissioner, 61 T.C. 367, 377 (1973). This is a factual issue, to be decided upon all the facts and circumstances in each case. Geftman v. Commissioner, supra. Petitioners must prove that a bona fide debt was created and that the transfers were loans. Rule 142(a); Welch v. Helvering, supra. Both Brian and Wayne testified that it was their intention to obtain Plan loans. Such testimony is, however, overcome by other evidence and is therefore not controlling. See Livernois Trust v. Commissioner, supra. We now turn to the objective factors relevant to the instant case. a. The Existence or Nonexistence of a Debt Instrument The existence of a promissory note for each transfer of funds is evidence of debt. However, respondent argues that thePage: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Next
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