Henry C. Boler and Sherry M. Boler - Page 12




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          Rule 142(a)(1).  We apply special scrutiny because petitioner had           
          unfettered control over AIM.  See Elec. & Neon, Inc. v.                     
          Commissioner, 56 T.C. 1324, 1338-1339 (1971), affd. without                 
          published opinion 496 F.2d 876 (5th Cir. 1974); Haber v.                    
          Commissioner, 52 T.C. 255, 266 (1969), affd. 422 F.2d 198 (5th              
          Cir. 1970).                                                                 
               Petitioners contend that the December 31, 1992, promissory             
          note is evidence of the alleged loan for the Whittington property           
          and establishes a bona fide debt.  We disagree.                             
               The promissory note does not establish the existence of a              
          bona fide debt, especially where, as here, there is documentary             
          evidence (discussed below) in conflict with the note.  See In re            
          Lane, 742 F.2d 1311, 1315 (11th Cir. 1984); Stinnett’s Pontiac              
          Serv., Inc. v. Commissioner, 730 F.2d 634, 638 (11th Cir. 1984),            
          affg. T.C. Memo. 1982-314; Tyler v. Tomlinson, 414 F.2d 844, 849            
          (5th Cir. 1969).  Petitioner signed the note both as borrower and           
          lender; there is no evidence that there were arm’s-length                   
          negotiations.  The note provides no fixed payment schedule or               
          maturity date.  It provides for annual payment of interest at a             
          rate of 10 percent per year payable from December 31, 1994, to              
          December 31, 2000.  There is no evidence that petitioner and AIM            
          had a written loan agreement or discussed security for the                  
          alleged loan, or that AIM maintained records of the alleged debt            
          or recorded it on its books.  There is no evidence that the note            






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