Robert W. Tschetter - Page 23

                                       - 23 -                                         
          unconditional intention on the part of the transferor to secure             
          repayment.”  Haag v. Commissioner, 88 T.C. 604, 616 (1987), affd.           
          without published opinion 855 F.2d 855 (8th Cir. 1988).  In the             
          instant cases, when the payments were made there was no                     
          unconditional obligation on the part of Mr. Tschetter to repay a            
          specific dollar amount to the corporation.  His obligation to               
          repay any of the payments was in general terms.  The amount of              
          repayment could not be determined when the payments were made.              
          Any obligation to repay any amount could not arise before                   
          respondent disallowed the deduction for the expenses; i.e, when             
          the Wolf Creek Farm notice of deficiency was issued in January              
          2001.  Thus, the payments were not loans.  Since the payments               
          when made by Wolf Creek Farm did not constitute business expenses           
          of the corporation or loans to Mr. Tschetter, the conclusion is             
          inescapable that the payments constituted distributions by Wolf             
          Creek Farm to Mr. Tschetter.                                                
               In N. Am. Oil Consol. v. Burnett, 286 U.S. 417, 424 (1932),            
          the Supreme Court stated:                                                   
               If a taxpayer receives earnings under a claim of right                 
               and without restriction as to its disposition, he has                  
               received income which he is required to return, even                   
               though it may still be claimed that he is not entitled                 
               to retain the money, and even though he may still be                   
               adjudged liable to restore its equivalent. * * *                       
          It is clear, therefore, under the claim of right doctrine, the              
          amounts paid by Wolf Creek Farm in 1995, 1996, and 1997 were                







Page:  Previous  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  Next

Last modified: May 25, 2011