- 18 - individual or entity by examining objective evidence of the taxpayer’s intentions. See, e.g., In re Uneco, Inc., supra at 1207-1208. Subjective evidence of the taxpayer’s intent will also be considered. Id. at 1209. The following factors, among others, are often considered: (1) Whether a purported loan was evidenced by a written promissory note; (2) whether interest was charged; (3) whether a schedule for repayment and a stated maturity date were established; (4) whether security or collateral for the purported loan existed (and was perfected); (5) whether the purported debtor corporation was thinly or inadequately capitalized; (6) whether the proportion of the corporation’s debt to equity would justify the purported loan; (7) whether repayment of the purported loan was predicated on the success of the purported debtor’s business; (8) whether the purported debtor had the ability to obtain a similar loan from a bank; (9) whether the purported creditor participated in the management of the corporation; and (10) whether the purported loan was repaid by the stated maturity date. Id. at 1207-1208; Clark v. Commissioner, 18 T.C. 780, 783 (1952), affd. per curiam 205 F.2d 353 (2d Cir. 1953). The failure of parties to produce evidence in their possession and control may give rise to a negative inference that, if produced, the evidence would be unfavorable to them.Page: Previous 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Next
Last modified: May 25, 2011