- 10 - Given petitioner’s credible and persuasive explanation of the loan application, we find that peitioner has met his burden of proof. Based on the above, we hold that petitioner did not receive rental income during the years in issue and is thus not liable for any income tax deficiencies relating to rental income. B. Respondent Improperly Recharacterized Petitioner’s Loans as Constructive Dividends Respondent determined that disbursements made by Caspian to and on behalf of petitioner during the years in issue were constructive dividends and not loans. The resolution of this issue does not depend on which party bears the burden of proof. On the basis of the evidence in the record, we hold that the amounts disbursed to petitioner were loans. Whether a corporation’s disbursements to an employee- shareholder are loans or constructive dividends depends on whether, at the time of the disbursements, the employee- shareholder intended to repay the amounts received and the corporation intended to require payment. J.A. Tobin Constr. Co. v. Commissioner, 85 T.C. 1005, 1022 (1985); Elec. & Neon, Inc. v. Commissioner, 56 T.C. 1324, 1338-1339 (1971), affd. without published opinion 496 F.2d 876 (5th Cir. 1975); Miele v. Commissioner, 56 T.C. 556, 567 (1971), affd. without published opinion 474 F.2d 1338 (3d Cir. 1975). If repayment was intended at the time of disbursement, the amounts are generally consideredPage: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Next
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