Waterfall Farms, Inc. - Page 21

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          v. Commissioner, T.C. Memo. 1985-436.  We have found that                   
          expenses for food and rent paid by Waterfall Farms are the                  
          Hubers’ expenses.  Petitioners contend that the payments are not            
          constructive dividends because Mr. Huber was required to repay              
          any amounts that Waterfall Farms could not deduct for Federal               
          income tax purposes.  Petitioners cite Cepeda v. Commissioner,              
          T.C. Memo. 1993-477, to support their position.  Cepeda, however,           
          is inapposite.  In that case, the taxpayers claimed that advances           
          made by the corporation were loans rather than employee                     
          compensation or constructive dividends.  Here, petitioners do not           
          contend that the corporate payments of the Hubers’ expenses were            
          loans.                                                                      
               For Federal income tax purposes, a transaction will be                 
          characterized as a loan if there was “an unconditional obligation           
          on the part of the transferee to repay the money, and an                    
          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 case, when the payments were made there was no                      
          unconditional obligation on the part of the Hubers to repay a               
          specific dollar amount to the corporation.  Their 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                   






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