- 11 - 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,Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Next
Last modified: May 25, 2011