- 11 - loans. Miele v. Commissioner, supra at 567. On the other hand, if no repayment was intended, the amounts are to be considered constructive dividends. Id. This determination depends on all the facts and circumstances surrounding the transactions. Estate of Chism v. Commissioner, 322 F.2d 956, 960 (9th Cir. 1963), affg. T.C. Memo. 1962-6; J.A. Tobin Constr. Co. v. Commissioner, supra at 1022; Miele v. Commissioner, supra at 567; Roschuni v. Commissioner, 29 T.C. 1193, 1201-1202 (1958), affd. 271 F.2d 267 (5th Cir. 1959). When an employee-shareholder is in substantial control of the corporation, such control invites special scrutiny. Roschuni v. Commissioner, supra at 1202. Mere declarations by an employee- shareholder that he intended a transaction to constitute a loan are insufficient if the transaction fails to meet more reliable indicia of debt. J.A. Tobin Constr. Co. v. Commissioner, supra at 1022. In making the necessary factual determination, courts have looked to a number of objective factors, including: (1) [W]hether the promise to repay is evidenced by a note or other instrument; (2) whether interest was charged; (3) whether a fixed schedule for repayments was established; (4) whether collateral was given to secure payment; (5) whether repayments were made; (6) whether the borrower had a reasonable prospect of repaying the loan and whether the lender had sufficient funds to advance the loan; and (7) whether the parties conducted themselves as if the transaction were a loan.Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Next
Last modified: May 25, 2011