Simco Automotive Pump Co., Inc. - Page 14




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          Electric & Neon, Inc. v. Commissioner, 56 T.C. 1324, 1339 (1971),           
          affd. without published opinion 496 F.2d 876 (5th Cir. 1974);               
          Haber v. Commissioner, supra at 266.  Because both Simco                    
          shareholders acquiesced in the treatment of the proceeds from the           
          latter half of 1991 as a loan repayment, we believe special                 
          scrutiny is appropriate in the instant cases.                               
               Based on all the facts and circumstances, we find that                 
          petitioners have failed to prove that John’s retention of the               
          proceeds from scrap metal sales during the period July 1 through            
          December 31, 1991, was intended to be the repayment of a loan.              
          First, we note the general confusion on the part of petitioners             
          about who lent what to whom.  Petitioners executed stipulations             
          in these cases stating that Simco characterized the scrap metal             
          proceeds received during its fiscal year ended June 30, 1992 as a           
          loan from Simco to John.  In his opening statement at trial,                
          petitioners’ counsel argued that these proceeds “should be                  
          considered a loan to Mr. McLean”.  However, on brief, for the               
          first time, petitioners take a different position; namely, that             
          these proceeds constituted Simco’s repayment of a loan to it by             
          John.  This mutation in petitioners’ position is emblematic of              
          the confused state of the record regarding the purported loan               
          transaction.  Although the record contains copies of certain                
          demand notes obligating Simco to pay John (and Neal) various                
          amounts, the notes themselves are ambiguous as to their date of             





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