Ronald B. and Annette C. Talmage - Page 54




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              Petitioner has the burden to prove the transferred funds                
         constituted loans.  See Rule 142(a).20                                       
              A loan is “‘an agreement, either expressed or implied,                  
         whereby one person advances money to the other and the other                 
         agrees to repay it upon such terms as to time and rate of                    
         interest, or without interest, as the parties may agree.’”  Welch            
         v. Commissioner, 204 F.3d 1228, 1230 (9th Cir. 2000) (quoting                
         Commissioner v. Valley Morris Plan, 305 F.2d 610, 618 (9th Cir.              
         1962), revg. 33 T.C. 572 (1959) and 33 T.C. 720 (1960)), affg.               
         T.C. Memo. 1998-121.  Because receipt of money pursuant to a loan            
         is offset by a corresponding obligation to repay, a loan is not              
         taxable income.  Commissioner v. Tufts, 461 U.S. 300, 307 (1983).            
              For a bona fide loan to arise both parties must have had an             
         actual intent to establish a debtor-creditor relationship at the             
         time the funds were advanced.  Estate of Chism v. Commissioner,              
         322 F.2d 956, 960 (9th Cir. 1963), affg. Chism Ice Cream Co. v.              
         Commissioner, T.C. Memo. 1962-6; Fisher v. Commissioner, 54 T.C.             
         905, 909-910 (1970).  Whether the parties intended to establish a            
         debtor-creditor relationship is determined by the facts and                  
         circumstances.  Fisher v. Commissioner, supra at 910.  The U.S.              


               20 The burden of proof does not shift to respondent in this            
          case pursuant to sec. 7491(a) because petitioner failed to:  (1)            
          Comply with the requirements under the Code to properly                     
          substantiate items; (2) show he maintained all required records;            
          and (3) show he cooperated with the reasonable requests of                  
          respondent for documents and information.                                   






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