Hubert Enterprises, Inc. and Subsidiaries, et al. - Page 29

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               B.  Petitioners’ Claim to a Bad Debt Deduction                         
               Petitioners bear the burden of proving that the transfers              
          are debt.6  See Rule 142(a)(1); Roth Steel Tube Co. v.                      
          Commissioner, 800 F.2d 625, 630 (6th Cir. 1986), affg. T.C. Memo.           
          1985-58; Smith v. Commissioner, 370 F.2d 178, 180 (6th Cir.                 
          1966), affg. T.C. Memo. 1964-278.  Debt for Federal income tax              
          purposes connotes an existing, unconditional, and legally                   
          enforceable obligation to repay.  See Roth Steel Tube Co. v.                
          Commissioner, supra at 630; First Natl. Co. v. Commissioner,                
          289 F.2d 861, 864-865 (6th Cir. 1961), revg. and remanding                  
          32 T.C. 798 (1959); Burrill v. Commissioner, 93 T.C. 643, 666               
          (1989); see also AMW Invs., Inc. v. Commissioner, T.C. Memo.                
          1996-235.  Transfers between related parties are examined with              
          special scrutiny.  Cf. Roth Steel Tube Co. v. Commissioner, supra           
          at 630.  A transfer’s economic substance prevails over its form,            
          see Smith v. Commissioner, supra at 180; Byerlite Corp. v.                  
          Williams, 286 F.2d 285, 291 (6th Cir. 1960), and a finding of               
          economic substance turns on whether the transfer would have                 
          followed the same form had it been between the transferee and an            

               6 Petitioners have not raised the issue of sec. 7491(a),               
          which shifts the burden of proof to the Commissioner in certain             
          situations, and we conclude that sec. 7491(a) does not apply.               
          In the case of a corporation such as each petitioner, sec.                  
          7491(a)(2) limits the shifting of the burden of proof to                    
          situations where, among other things, the corporation shows that            
          upon filing its petition in this Court, its net worth was no more           
          than $7 million.  See also 28 U.S.C. sec. 2412(d)(2)(B) (2000).             
          Neither petitioner has made such a showing.                                 





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