Karl T. and Kathleen S. Harvey - Page 4




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          loan is recharacterized as an arm's-length transaction in which              
          the lender made a loan to the borrower in exchange for a note                
          requiring the payment of interest at the applicable Federal rate.            
          The amount by which the interest which would have been payable on            
          the loan at the applicable Federal rate exceeds the interest                 
          payable pursuant to the loan agreement is called "forgone                    
          interest".  Sec. 7872(e)(2).  The forgone interest is treated as:            
          (1) Transferred from the lender to the borrower; and (2)                     
          retransferred from the borrower to the lender as interest paid on            
          the loan.  Sec. 7872(a)(1)(A) and (B).  The first transfer is                
          treated as a gift, dividend, payment of compensation, or other               
          payment to the borrower, depending on the relationship between               
          the lender and the borrower.  KTA-Tator, Inc. v. Commissioner,               
          supra at 102.  The second transfer is treated as a payment of                
          interest by the borrower to the lender which is includable in the            
          lender's income and deductible by the borrower to the extent                 
          allowable under section 163.  Id.                                            
               Petitioners agree that the advances made by KHTC fall within            
          the section 7872(e)(1) definition of a below-market loan.  They              
          contend, however, that respondent erred in determining the                   
          amounts of the outstanding loans which were subject to section               
          7872 during the taxable years in issue.  They argue that some of             
          the older loans were "unenforceable" during the taxable years in             
          issue by reason of Oregon's statute of limitation for commencing             
          actions upon a liability, effectively exempting such loans from              
          section 7872.  Petitioners calculate that the correct amounts of             


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