Estate of Lillie Rosen, Deceased, Ilene Field and Herbert Silver, Co-Personal Representatives - Page 55

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          disbursements to be bona fide loans, we must find that when the             
          funds were disbursed there was an unconditional obligation and              
          intent on the part of the transferee to repay the money and an              
          unconditional intent on the part of the transferor to secure                
          repayment.  See Busch v. Commissioner, supra at 948; Haag v.                
          Commissioner, supra at 615-616; see also Haber v. Commissioner,             
          supra at 266.  Direct evidence of a taxpayer’s state of mind is             
          generally unavailable, so courts have focused on certain                    
          objective factors to distinguish bona fide loans from, among                
          other things, disguised distributions.  Although objective                  
          factors are most often employed by courts to distinguish debt               
          from equity in the setting of closely held corporations, see                
          Hubert Enters., Inc. & Subs. v. Commissioner, supra at 91-92, we            
          consider them to be most helpful here, accord Gray v.                       
          Commissioner, T.C. Memo. 1997-67 (factors used to determine                 
          whether a corporation’s transfer to a shareholder is a loan                 
          rather than a dividend); Miller v. Commissioner, T.C. Memo.                 
          1996-3 (factors used to determine whether a transfer was made               
          with a real expectation of repayment and an intention to enforce            
          a debt), affd. without published opinion 113 F.3d 1241 (9th Cir.            
          1997).  The relevant factors used to distinguish debt from equity           
          include:  (1) The name given to an instrument underlying the                
          transfer of funds; (2) the presence or absence of a fixed                   
          maturity date and a schedule of payments; (3) the presence or               






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