- 50 - or other evidence of indebtedness exists; (2) whether interest is charged; (3) whether there is a fixed schedule for repayments; (4) whether any security or collateral is requested; (5) whether there is any written loan agreement; (6) whether a demand for repayment has been made; (7) whether the parties' records, if any, reflect the transaction as a loan; (8) whether any repayments have been made; and (9) whether the borrower was solvent at the time of the loan, see Zimmerman v. United States, supra at 613; Estate of Maxwell v. Commissioner, 98 T.C. 594, 604 (1992), affd. 3 F.3d 591 (2d Cir. 1993); Clark v. Commissioner, 18 T.C. 780 (1952), affd. 205 F.2d 353 (2d Cir. 1953). These factors focus primarily on ascertaining the intent of the parties to the transfer through their objective and subjective expectations. Bauer v. Commissioner, 748 F.2d 1365, 1367-1368 (9th Cir. 1984), revg. T.C. Memo. 1983-120; A.R. Lantz Co. v. Commissioner, 424 F.2d 1330, 1333-1334 (9th Cir. 1970). Applying this two part analysis to the subject transactions, we find that the $30,000 transfer to Ms. Wong fails the first part of this analysis. Because the underlying note conditions repayment of the "loan" on the sale of her house, she was under no absolute obligation to repay the "loan". She would never have to repay the "loan", for example, if she never sold her home. This transaction is not bona fide debt for purposes of section 166.Page: Previous 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 Next
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