Estate of H.A. True, Jr. - Page 247




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              The amount Jean True ultimately received on the payment date            
          (September 30, 1994) was equal to the $13,298,978 “amount                   
          loaned”.  Because the “present value” of $13,298,978 to be paid             
          up to 6 months in the future, without interest, is less than                
          $13,298,978, the deferred payment arrangement was a “below-market           
          loan”.  Sec. 7872(e)(1)(B).                                                 
              C. Gift Loan                                                            
              Section 7872 applies to certain defined categories of below-            
          market loans.  See sec. 7872(c)(1).  One of these categories is             
          gift loans.  See Sec. 7872(c)(1)(A).                                        
              A gift loan is defined as “any below-market loan where the              
          foregoing of interest is in the nature of a gift.”  Sec.                    
          7872(f)(3).  As we said in Frazee v. Commissioner, supra at 589:            
              The question of whether the forgoing of interest is in                  
              the nature of a gift is determined under the gift tax                   
              principles of chapter 12.  See sec. 7872(d)(2).  Under                  
              traditional gift tax principles, we look to whether the                 
              value of the property transferred exceeds the value of                  
              the consideration received, dispensing with the test of                 
              donative intent.  Therefore, a below-market loan will be                
              treated as a gift loan unless it is a transfer made in                  
              the ordinary course of business, that is, unless it is a                
              transaction which is bona fide, at arm’s length, and                    
              free of donative intent. * * * [Emphasis added.]                        
          See also sec. 25.2512-8, Gift Tax Regs.  We also note that                  
          intrafamily transactions are subject to special scrutiny and are            
          presumed to be gifts.  See Harwood v. Commissioner, 82 T.C. 239,            
          259 (1984), affd. without published opinion 786 F.2d 1174 (9th              
          Cir. 1986).                                                                 






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