Donald G. and Beverly J. Oren - Page 20




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          because there has not been an “actual economic outlay” by the               
          shareholder to the corporation.  See, e.g., Estate of Bean v.               
          Commissioner, supra at 558-559; Estate of Leavitt v.                        
          Commissioner, 90 T.C. 206, 211 (1988), affd. 875 F.2d 420 (4th              
          Cir. 1989).11  Petitioners argue that funds lent directly from a            
          shareholder to an S corporation create basis under section                  
          1366(d), and an actual economic outlay is not required, even if             
          other transactions offset the direct loan.  Petitioners argue               
          that an actual economic outlay is required only where there is a            
          shareholder guaranty.  Essentially, petitioners are arguing that            
          the “form” of a direct loan from a shareholder to an S                      
          corporation is sufficient to increase basis in indebtedness under           
          section 1366(d)(1)(B).                                                      
               A shareholder must make an actual economic outlay to                   
          increase basis in an S corporation, even if the shareholder has             
          made a direct loan.  Bergman v. United States, 174 F.3d 928, 932            
          (8th Cir. 1999); Underwood v. Commissioner, 535 F.2d 309, 311-313           
          (5th Cir. 1976), affg. 63 T.C. 468 (1975).  Indeed, in Bergman v.           
          United States, supra at 933, the Court of Appeals for the Eighth            
          Circuit stated:                                                             
                    The economic outlay doctrine does not apply only                  
               to loan guarantees, but it has been used to explain                    
               that a shareholder who guarantees a bank loan to an S                  
               corporation does not create additional basis because he                


               11But see Selfe v. United States, 778 F.2d 769 (11th Cir.              
          1985).                                                                      





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