Jane H. and Leroy W. Hess - Page 5




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          issue.  Specifically, respondent’s position is that the amount              
          advanced to the corporation was a contribution to capital.                  
               Because the burden of proof does not affect the result with            
          respect to the NOL issue, we find that section 7491 has no                  
          bearing on the determination of that issue.                                 
               Section 166(a) generally allows a deduction for a debt which           
          becomes worthless during the taxable year.  Bad debts may be                
          characterized as either business bad debts or nonbusiness bad               
          debts.  Sec. 166(d).  To be entitled to the deduction, the                  
          taxpayer must prove the existence of a bona fide debtor-creditor            
          relationship which obligates the debtor to pay the taxpayer a               
          fixed or determinable sum of money.  Burns v. Commissioner, T.C.            
          Memo. 1997-83.  A contribution to capital cannot be considered              
          debt.  Calumet Indus., Inc. v. Commissioner, 95 T.C. 257, 284               
          (1990); sec. 1.166-1(c), Income Tax Regs.                                   
               Petitioners apparently concede that the money provided by              
          Mrs. Hess to Hess Inc. was not a loan.  Mr. Hess testified that             
          “[Mrs. Hess] did not –- in terms of that bad debt, she did not –            
          there was no bad debt.”  Mr. Hess further testified that the                
          identification of the amount provided by Mrs. Hess as a bad debt            
          “was a misnomer”.                                                           
               Our review of the record leads us to conclude that the                 
          advance by Mrs. Hess to Hess Inc. in 1992 was in fact a                     
          contribution to capital, rather than a loan.  There was no                  






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