Wayne L. Patrick - Page 11

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          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 the             





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