Ronald B. and Annette C. Talmage - Page 58




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                   2.   Whether Collateral Was Given To Secure Payment                
              The January 25, 1999, loan agreement stated that “security              
         for the loaned funds shall be in the form of, firstly, a lien on             
         Ronald’s salary as paid by NCPL, and secondly, at an appropriate             
         time, a mortgage or lien on the property.”23                                 
              Although petitioner asserts his salary served as collateral             
         to secure payment of the funds advanced to SSI for the development           
         of the Rivercliff property, the salary was not enough to secure a            
         loan of $4,856,172.  Additionally, NCPL did not garnish                      
         petitioner’s wages when he failed to make the payments required by           
         the loan agreement and the promissory note.                                  
              Petitioner asserted that the Rivercliff property also served            
         as collateral to secure payment.  However, the trust deed securing           
         NCPL’s advances to SSI of $4,856,172 was not executed until August           
         21, 2001, after the funds secured by the property were advanced.             
         For a bona fide loan to arise the parties must have so intended at           
         the time the funds were advanced.  Estate of Chism v.                        
         Commissioner, 322 F.2d at 960; Fisher v. Commissioner, 54 T.C. at            
         909-910.                                                                     
              Petitioner testified that because Kumiko Talmage refused to             
         sign any document encumbering the Rivercliff property, he was                
         unable to grant a security interest until after she transferred              


               23 The June 16, 2000, loan confirmation agreement also                 
          requested petitioner record a mortgage in favor of NCPL.                    






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