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time of the withdrawals or advances, the shareholder intended to
repay the amounts received and the corporation intended to
require repayment. Miele v. Commissioner, 56 T.C. 556, 567
(1971), affd. without published opinion 474 F.2d 1338 (3d Cir.
1973). Respondent’s determination that the withdrawals or
advances constitute constructive dividends, and therefore gross
income, is presumptively correct, and petitioners bear the burden
of proving that respondent’s determination is erroneous. Rule
142(a); Welch v. Helvering, 290 U.S. 111 (1933); Miele v.
Commissioner, supra at 567. Section 7491(a) shifts the burden of
proof to the Commissioner under certain circumstances. The
burden does not shift with respect to any factual issue relating
to the present cases because petitioners did not introduce
credible evidence. Sec. 7491(a)(1).
A court may look to various factors to determine intent to
repay, but, once the taxpayer’s intent is found, that finding is
conclusive of the legal issue of loans versus dividends. Busch
v. Commissioner, 728 F.2d 945, 948-949 (7th Cir. 1984), affg.
T.C. Memo. 1983-98. The issue of taxpayer intent in the loan
versus dividend context is a question of fact, and, even though
one must look at objective facts to determine intent, it is the
taxpayer’s actual intent or actual motive with which the Court is
concerned. Id. at 949; see also United States v. Pomponio, 563
F.2d 659, 662 (4th Cir. 1977); Livernois Trust v. Commissioner,
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