- 11 - were not the same as those of the taxpayers in the above cases. Accordingly, to the extent that we determine the advances in these cases were loans, we do not find that the obligation to repay was contingent upon the success of the Theratech device. Instead we find that the obligation to repay the advances was fixed; however, there was a sizable risk that Estes could not repay the advances unless the device became a financial success. Bona Fide Debt A determination that the obligation to repay is not contingent on some future event does not necessarily mean that the loans are bona fide debts for purposes of section 166. It must also be established by petitioners that the loans were made with a reasonable expectation, belief, and intention that they would be repaid. The determination of whether a transfer was made with a real expectation of repayment and an intention to enforce the debt depends on all the facts and circumstances including whether: (1) There was a promissory note or other evidence of indebtedness; (2) there is any written loan agreement; (3) interest was charged; (4) there was security or collateral, (5) there was a fixed maturity date; (6) a demand for repayment was made; (7) any actual repayment was made; (8) the transferee had the ability to repay; and (9) the parties' records, if any, reflect the transaction as a loan. See JohnPage: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Next
Last modified: May 25, 2011