- 2 - 2001) (Cerand II). In T.C. Memo. 1998-423 (Cerand I), we held that the advances petitioner made to sister corporations were equity and not debt as claimed by petitioner. In Cerand II, the Court of Appeals held: In the present case, we hold that the [Tax Court] abused its discretion in assessing the evidence. The critical flaw in the [Tax Court’s] analysis is its failure, despite the taxpayer having pressed the point, to consider * * * [petitioner’s] contemporaneous treatment of sums received from its sister corporations as in part the payment of “interest,” taxable as income to * * * [petitioner]. Over a period of several years, * * * [petitioner] received $414,220 from the three [sister] corporations, of which it booked more than $175,000 as interest income. Even though * * * [petitioner] had taxable income in only two of the years in question (1986 and 1987), treatment of the repayments as income in other years reduced the amount of net operating loss * * * [petitioner] could carry forward into years when it had taxable income. Although the [Tax Court] abused its discretion by omitting from its analysis a highly significant bit of evidence, we cannot say that, had the [Court] properly weighed this evidence, it necessarily would have reached a different conclusion, because we do not know what weight it assigned to the other evidence. Therefore, we remand this case for the [Tax Court] to weigh all the evidence in the first instance. We also note that the [Tax Court] placed considerable weight upon the lack of documentation indicating that the transfers of funds from * * * [petitioner] to its sister corporations were loans. Because there were no documents recording the transfers there necessarily were no stated maturity dates, no repayment schedules, and no set interest rates. As the Seventh Circuit recently observed in similar circumstances, “it is hazardous to say * * * that an investment must be equity because it is not documented as debt; lack of documentation does not help us choose.” J & W Fence Supply Co. v. United States, 230 F.3d 896, 898 (2000). * * * [Petitioner] does not raisePage: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Next
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