-54- unconditional, and legally enforceable obligation to repay, see Frierdich v. Commissioner, supra at 185; Hubert Enters., Inc. & Subs. v. Commissioner, 125 T.C. 72, 91 (2005), and transfers between related parties are examined with special scrutiny, see Tulia Feedlot, Inc. v. United States, 513 F.2d 800, 805 (5th Cir. 1975); Haber v. Commissioner, 52 T.C. 255, 266 (1969), affd. 422 F.2d 198 (5th Cir. 1970). A transfer’s economic substance prevails over its form, see 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 independent lender, see Scriptomatic, Inc. v. United States, 555 F.2d 364 (3d Cir. 1977). The subjective intent of the parties to a transfer that the transfer create debt does not override an objectively indicated intent to the contrary. See Stinnett’s Pontiac Serv., Inc. v. Commissioner, 730 F.2d 634, 639 (11th Cir. 1984), affg. T.C. Memo. 1982-314; cf. Busch v. Commissioner, 728 F.2d 945, 948 (7th Cir. 1984), affg. T.C. Memo. 1983-98. Whether the withdrawal of funds from an entity by one of its owners creates a true debtor-creditor relationship is a factual question to be decided on the basis of all relevant facts and circumstances. See Haag v. Commissioner, 88 T.C. 604, 615 (1987), affd. without published opinion 855 F.2d 855 (8th Cir. 1988); see also Haber v. Commissioner, supra at 266. ForPage: Previous 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 Next
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