- 36 - liability may exist, but not debt to the shareholder. Raynor v. Commissioner, supra at 771. This Court also has held that the mere guaranty of a loan does not involve any economic outlay. Estate of Leavitt v. Commissioner, supra at 422; Brown v. Commissioner, supra. Until the guarantor pays the obligation, the guarantor does not have an actual investment. Brown v. Commissioner, supra; Underwood v. Commissioner, 63 T.C. 468, 476 (1975), affd. 535 F.2d 309 (5th Cir. 1976). Nonetheless, in Selfe v. United States, 778 F.2d 769, 773 (11th Cir. 1985), the Court of Appeals for the Eleventh Circuit28 concluded that a shareholder has basis in guaranteed loans for purposes of section 1366(d)(1) where the facts demonstrate that, in substance, the shareholder borrowed the funds and subsequently advanced them to the S corporation. In Selfe, the court reasoned that the shareholder-guaranteed loan may be treated for tax purposes as an equity investment in the corporation where the lender looks to the shareholder as the primary obligor. Id. at 774. Thus, pursuant to Selfe, shareholder guaranteed loans may give rise to basis in the shareholder's stock as an equity investment within the meaning of section 1366(d)(1)(A). The taxpayer in Selfe entered the retail clothing business. Prior to 28 Absent stipulation to the contrary, the instant case is appealable to the Court of Appeals for the Eleventh Circuit. See Golsen v. Commissioner, 54 T.C. 742, 757 (1970), affd. 445 F.2d 985 (10th Cir. 1971).Page: Previous 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 Next
Last modified: May 25, 2011