Ronald D. Weeldreyer and Suzanne Weeldreyer - Page 26

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            are not constructive dividends because Mr. Weeldreyer was                                   
            required to repay any amounts that Dreyer 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.                                       
            Petitioners do not contend that the corporate payments of Mr.                               
            Weeldreyer’s 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 cases, when the payments were made there was no                                     
            unconditional obligation on the part of Mr. Weeldreyer 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 Dreyer Farms notice of deficiency was issued in January 2001.                           
            Thus, the payments were not loans.  Since the payments when made                            






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