-55- 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 orPage: Previous 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 Next
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