T.C. Memo. 1998-30
UNITED STATES TAX COURT
WAYNE L. PATRICK, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
BRIAN J. PATRICK, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket Nos. 26419-96, 26420-96. Filed January 26, 1998.
Joseph Falcone and Brian H. Rolfe, for petitioners.
Mark L. Hulse and Laurence D. Ziegler, for respondent.
MEMORANDUM FINDINGS OF FACT AND OPINION
LARO, Judge: On October 4, 1996, respondent issued separate
notices of deficiency to Brian J. Patrick (Brian) and Wayne L.
Patrick (Wayne) based on their failure to include in gross income
the distributions from a qualified profit-sharing plan and on
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Wayne's failure to include in gross income the distributions from
an individual retirement account (IRA). Respondent determined
deficiencies and additions to tax as follows:
Wayne L. Patrick--docket No. 26419-96:
Additions to Tax
Sec. Sec.
Year Deficiency 6651(a)(1) 6654
1992 $221,831 $55,458 $9,679
1993 11,647 2,912 488
1994 9,248 2,312 476
Brian J. Patrick--docket No. 26420-96:
Additions to Tax
Sec. Sec.
Year Deficiency 6651(a)(1) 6654
1992 $53,128 $13,157 $2,294
1993 5,701 1,425 239
1994 7,421 1,855 382
Petitioners separately petitioned the Court on December 10, 1996,
to redetermine respondent's determinations. On October 7, 1997,
the cases were consolidated for trial, briefing, and opinion.
Following concessions, we must decide:
1. Whether the money each petitioner received from Erie
Industries, Inc. Employees' Profit Sharing Plan (the Plan) is
includable in his gross income. We hold that it is.
2. Whether the money Wayne received from his IRA is
includable in his gross income for 1993 and 1994. We hold it is.
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3. Whether petitioners are liable for the 10-percent
additional tax determined by respondent under section 72(t).
We hold they are.
Unless otherwise indicated, section references are to the
Internal Revenue Code in effect for the years in issue. Rule
references are to the Tax Court Rules of Practice and Procedure.
FINDINGS OF FACT
Some of the facts have been stipulated. The stipulations
and the exhibits attached are incorporated herein by this
reference, and the facts contained therein are so found.
Petitioners resided in West Bloomfield, Michigan, when they
petitioned the Court.
Before and during the years in issue, petitioners were the
owners, operators, employees, and shareholders of Erie
Industries, Inc. (Erie Industries). Erie Industries is a
subchapter S corporation engaged in precision machining and
grinding. At all times, petitioners were at least 10-percent
shareholders in the corporation.
Erie Industries maintained the Plan, which was a defined-
contribution profit-sharing plan established to operate as a
qualified plan described in section 401(a). The Erie Industries,
Inc. Employees' Profit Sharing Trust was formed under the Plan.
Wayne was the Plan trustee, and Erie Industries was the Plan
administrator. Petitioners participated in the Plan.
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The summary plan description provides for discretionary
loans made from the Plan to participants and beneficiaries.1
According to section VIII of the summary plan description, a
participant had to apply for a loan on forms provided by the Plan
administrator. The Plan administrator would then decide whether
a participant qualified for the loan and inform the trustee of
this decision. The trustee would review the administrator's
decision and make an independent decision on whether to approve
the loan. Also, according to the summary plan description, Plan
loan requirements included the following: (1) Loans must be made
available to all participants and their beneficiaries on a
uniform and nondiscriminatory basis; (2) loans must be adequately
secured, with up to one-half of a participant's vested account
balance as security for the loan; (3) loans must bear a
reasonable rate of interest; (4) loans must have a definite
repayment period which provides for payments to be made not less
frequently than quarterly, and for the loan to be amortized on a
level basis over a reasonable period of time, not to exceed
5 years;2 (5) loans must be limited by the rules of the Internal
1
At trial, petitioners submitted Exhibit 7-G entitled
"Erie Industries, Inc. Employees' Profit Sharing Trust Summary
Plan Description", and the Court allowed the exhibit into
evidence as a summary plan description and not as a
representative copy of the Plan itself. Petitioners failed to
locate and produce a copy of the Plan.
2
The 5-year amortization period could be extended if the
(continued...)
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Revenue Code; and (6) total loans to any one participant must be
limited to the lesser of $50,000, with some adjustment for
outstanding balance of loans, or one-half of a participant's or
beneficiary's vested account balance.3 Failure to make payments
when due under the terms of the loan agreement would result in a
default, whereby the trustee had the authority to collect the
balance of the loan through any reasonable action that included
instituting a lawsuit, foreclosing on any security, or
recharacterizing the loan as a deemed distribution.
As participants in the Plan, petitioners entered into a
series of transactions with the Plan. During 1992, Brian
received $207,300 from the Plan.4 The following promissory notes
were prepared to evidence the transfers of the underlying
amounts:
Date on Note Amount of Note
01/31/92 $110,000
02/28/92 26,000
03/31/92 6,000
04/30/92 2,000
05/31/92 10,000
06/30/92 2,000
07/31/92 31,000
08/31/92 10,000
2
(...continued)
loan was used to acquire a participant's principal residence.
3
These requirements were intended to incorporate the loan
requirements embodied in sec. 72(p)(2)(A), (B), and (C).
4
At that time, Brian had not attained either retirement
age under the Plan or the age of 59-1/2. See sec. 72(t)(2).
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09/30/92 3,000
10/31/92 2,000
12/31/92 5,300
1
Total 207,300
1
Respondent's notice of deficiency incorrectly identifies
the total amount of the transfers as $205,300, and respondent's
deficiency determination is based on that figure. Respondent
does not seek an increase in the deficiency determination.
Most, if not all, of the notes were prepared after the
corresponding transfers, and the notes dated September 30,
October 31, and December 31, 1992, were not signed. Brian did
not report any income with respect to these transfers.
In 1992 and 1993, Wayne received $624,000 and $17,000,
respectively, from the Plan.5 The following promissory notes
were prepared to evidence the transfers of the underlying
amounts:
Date on Note Amount of Note
01/31/92 $190,000
02/28/92 15,000
03/31/92 66,000
04/30/92 75,000
05/31/92 115,000
06/30/92 10,000
07/31/92 73,000
08/31/92 35,000
10/31/92 35,000
12/31/92 10,000
Total 624,000
02/28/93 17,000
5
At that time, Wayne had not attained either retirement
age under the Plan or the age of 59-1/2. See sec. 72(t)(2).
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Most, if not all, of these notes were prepared after the
corresponding transfers, and the May 31, 1992, note is not
signed. Wayne did not report any income with respect to these
transfers.
Each of petitioners' promissory notes contains the following
terms: Repayment of principal with interest from date of
transfer at a rate of 10 percent per annum; and payment in equal
monthly installments commencing approximately 1 month after the
date of each transfer until the earlier of repayment of principal
and interest in full or 5 years from the date of the transfer.
As security for each transfer, petitioners pledged their
respective vested account balances. The record does not disclose
the amounts of these balances at any time that is relevant
herein.
During 1993 and 1994, Wayne maintained an IRA with Merrill
Lynch. He received $9,000 from this account in 1993 and $9,307
in 1994. He did not report any income with respect to these
amounts.
OPINION
We must decide whether the funds received by petitioners
from their retirement accounts are includable in their gross
incomes. Petitioners argue that the transfers from the Plan are
loans from the Plan and nontaxable to the extent of $50,000 for
each petitioner. Petitioners concede that the transfers over
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$50,000 to each of them are distributions and, as such, are
income to the recipients. See sec. 72(p)(2)(A). Respondent
argues that there were no bona fide loans between the Plan and
petitioners, and that no part of the transfers qualifies as a
nontaxable loan under section 72(p)(2). In the alternative,
respondent argues that even if the transfers were loans, the
amounts received would still be deemed distributions under
section 72(p) and, as such, income to petitioners. As to all
issues, petitioners bear the burden of establishing that
respondent's determinations are incorrect. Rule 142(a); Welch v.
Helvering, 290 U.S. 111 (1933).
I. Distributions From the Plan and Bona Fide Debt
Section 402(a) provides that "any amount actually
distributed to any distributee by any employees' trust described
in section 401(a) * * * shall be taxable to the distributee, in
the taxable year of the distributee in which distributed, under
section 72".6 Section 72(p)(1)(A) generally provides that loans
from a qualified employer plan to plan participants or
beneficiaries are treated as taxable distributions. Section
72(p)(2) provides an exception, however, where the following
requirements are met: (1) The loan does not exceed the lesser of
the amount set forth in section 72(p)(2)(A)(i) or (ii); (2) the
6
The provision applies to distributions made after
Dec. 31, 1992. For our purposes, the version of sec. 402(a) in
effect for distributions made in 1992 was essentially the same.
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loan, by its terms, must be repaid within 5 years from the date
of its inception or is made to finance the acquisition of a home
which is the principal residence of the participant; and (3) the
loan must have substantially level amortization with quarterly or
more frequent payments required over the term of the loan.
Section 72(p)(2) applies only to distributions that are intended
to be loans.
Respondent argues that the transfers from the Plan were
taxable distributions and not loans. In support, respondent
cites the following factors: In all cases in which the notes
were signed, the notes were signed well after the transfers were
made; petitioners presented no evidence, other than copies of the
notes, that the Plan, the Plan administrator, the Plan trustee,
or petitioners maintained any records reflecting the transfers as
loans; any repayments on the notes, if in fact made, were
insignificant; there was at no time a demand for repayment and no
steps were taken to enforce the notes; neither petitioner had the
ability to repay the transferred funds; and the notes were
between related parties and the form of the transaction should
not be honored where it lacks economic reality. In response,
petitioners argue that sufficient "indicia of debt" are present
to justify characterizing the transfers as loans.
A transfer of money will be characterized as a loan for
Federal income tax purposes where "'at the time the funds were
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transferred, [there was] an unconditional intention on the part
of the transferee to repay the money, and an unconditional
intention on the part of the transferor to secure payment.'"
Geftman v. Commissioner, T.C. Memo. 1996-447 (quoting Haag v.
Commissioner, 88 T.C. 604, 616 (1987), affd. without published
opinion 855 F.2d 855 (8th Cir. 1988)). In other words, the
parties must intend to create bona fide debt. The intention of
the parties "relates not so much to what the transaction is
called, or even what form it takes as it does to an actual intent
that money advanced will be repaid." Berthold v. Commissioner,
404 F.2d 119, 122 (6th Cir. 1968), affg. T.C. Memo. 1967-102; see
also Livernois Trust v. Commissioner, 433 F.2d 879, 882 (6th Cir.
1970), affg. T.C. Memo. 1969-111. However, because direct
evidence of a taxpayer's state of mind is not generally
available, courts have focused on certain objective factors to
determine whether a bona fide loan exists: (1) The existence or
nonexistence of a debt instrument; (2) provisions for security,
interest payments, and a fixed repayment date; (3) whether the
parties' records, if any, reflect the transaction as a loan; (4)
the source of repayment and the ability to repay; (5) the
relationship of the parties; (6) whether any repayments have been
made; (7)whether a demand for repayment has been made; and (8)
failure to pay on the due date or to seek a postponement. See
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Smith v. Commissioner, 370 F.2d 178, 180 (6th Cir. 1966), affg.
T.C. Memo. 1964-278; Haag v. Commissioner, supra at 616 n.6.
The above factors are not exclusive, and no one factor is
dispositive. See John Kelley Co. v. Commissioner, 326 U.S. 521,
530 (1946); Smith v. Commissioner, supra. The factors are simply
objective criteria helpful to the Court in analyzing all relevant
facts and circumstances. The ultimate question remains whether
"there [was] a genuine intention to create a debt, with a
reasonable expectation of repayment, and did that intention
comport with the economic reality of creating a debtor-creditor
relationship". Litton Bus. Sys. Inc. v. Commissioner, 61 T.C.
367, 377 (1973). This is a factual issue, to be decided upon all
the facts and circumstances in each case. Geftman v.
Commissioner, supra. Petitioners must prove that a bona fide
debt was created and that the transfers were loans. Rule 142(a);
Welch v. Helvering, supra.
Both Brian and Wayne testified that it was their intention
to obtain Plan loans. Such testimony is, however, overcome by
other evidence and is therefore not controlling. See Livernois
Trust v. Commissioner, supra. We now turn to the objective
factors relevant to the instant case.
a. The Existence or Nonexistence of a Debt Instrument
The existence of a promissory note for each transfer of
funds is evidence of debt. However, respondent argues that the
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existence of notes in this case is not strong evidence of the
character of the transactions because the notes were not signed
on or around the time of the distributions. Petitioners argue
that the presence of the notes is strong evidence of debt.
Brian testified that the notes were not prepared or signed
contemporaneously with the receipt of funds. He was unsure of
when he had signed the notes but believed it to be in either 1992
or 1993. Brian further stated that he signed the notes "at least
a year" after the receipt of the funds. Wayne did not know
exactly when he had signed the notes. Given this testimony and
other evidence in the record, the mere presence of notes is
assigned little weight unless supported by some other objective
evidence showing the distributions to be loans, especially
considering petitioners' relationship to Erie Industries and
Wayne's position as Plan trustee. Additionally, Brian's failure
to sign three of his notes and Wayne's failure to sign one of his
notes weakens petitioners' position that the notes are strong
evidence of debt. Under these circumstances, "form does not
necessarily correspond to the intrinsic economic nature of the
transaction". Fin Hay Realty Co. v. United States, 398 F.2d 694,
697 (3d Cir. 1968). This indicium offers no more than marginal
support for the existence of debt.
b. Provisions for Security, Interest Payments, and a Fixed
Repayment Date
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The notes contain provisions for security, payment of
principal and interest, and a fixed repayment schedule over a
5-year period. Respondent argues that the existence of these
provisions is weak evidence of debt because the notes were not
signed until after the distributions were received and the
provisions were ignored by both the Plan trustee and the
administrator.
Security, interest, and repayment arrangements are
ordinarily important proofs of intent to treat the transaction as
debt. Berthold v. Commissioner, supra at 122. However, the fact
that the funds were distributed before the drafting and signing
of the notes militates against assigning much weight to this
indicium.7 Accordingly, this indicium offers no more than
marginal support for the existence of debt.
c. The Parties' Records
Respondent notes that petitioners provided no evidence,
other than the notes, that the Plan, the Plan administrator, the
Plan trustee, or petitioners maintained any records reflecting
the transfers as loans. The record is indeed void of any other
evidence that the parties maintained records indicating that the
transfers created debt. This indicium supports a finding that
the transfers did not create bona fide debt.
7
We also note that no steps were taken to enforce these
provisions.
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d. The Source of Repayment and the Ability To Repay
Respondent argues that petitioners had no ability to repay
the transfers, and this indicium of debt is thereby lacking. The
monthly installments, including interest, for Brian's 1992
"loans" totaled $4,405.74. In 1992 through 1994, Brian received
wages, additional income, and interest income totaling $14,307,
$45,364, and $51,291, respectively. Brian testified that he was
aware of the fact that the 1992 notes required monthly payments
totaling approximately $52,000 a year. He also testified that he
entered into the transactions knowing that his wages for 1992
were only $14,000. The monthly installments, including interest,
for Wayne's 1992 and 1993 "loans" totaled $13,623.08. In 1992
through 1994, Wayne received wages, interest and dividend income
totaling $13,439, $45,359, and $57,352, respectively.
Petitioners' inability, ab initio, to meet their contractual
obligation to service these "loans" is evidence that petitioners
had no intention of treating the transactions as bona fide debt.
We also note that Wayne's testimony that his repayment of the
"loans" was contingent on the future success of Erie Industries
supports our finding that Wayne did not intend to treat the
transfers as bona fide debt. This indicium supports a finding
that the transactions did not create bona fide debt. Cf. Fuller
v. Commissioner, T.C. Memo. 1980-370 (taxpayers submitted
evidence that their net worth substantially exceeded the sum of
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the balances on the promissory notes, and thereby demonstrated
their ability to repay the obligation).
e. The Relationship of the Parties
Two facts color the transactions between petitioners and the
Plan: (1) Petitioners' status as owners, operators, employees,
and shareholders in Erie Industries; and (2) Wayne's position as
the Plan's trustee. Where the nominal creditor and debtor are
controlled by the same party and the arm's-length dealing that
characterizes the market is lacking, the substance of the
transaction and not its form is controlling. Road Materials,
Inc. v. Commissioner, 407 F.2d 1121, 1124 (4th Cir. 1969), affg.
on this issue T.C. Memo. 1967-187. In determining whether the
form of a transaction between closely related parties has
substance, we should compare their actions with what would have
occurred if the transaction had occurred between parties who were
dealing at arm's length. Peck v. Commissioner, 904 F.2d 525 (9th
Cir. 1990), affg. 90 T.C. 162 (1988); Maxwell v. Commissioner,
95 T.C. 107, 117 (1990).
We find that under the standards of parties dealing at arm's
length, the transactions at issue were not bona fide loans.
Among other things, an administrator, trustee, or other fiduciary
of a plan dealing at arm's length with a participant would not
have approved "loans" where the participant lacked any documented
ability to meet payment obligations. Although the Plan's
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administrator was required by the Plan to authorize any loan, we
find no such authorization during the subject years.
Furthermore, Wayne testified that he never reviewed the Plan or
supporting documents, even though he was the Plan's trustee. We
are left to conclude that petitioners rubberstamped these
transfers. This indicium supports a finding that the transfers
did not create bona fide debt.
f. Whether Repayments Have Been Made
Respondent argues that any repayment made by petitioners is
insignificant. Brian testified that in 1995 he repaid
approximately $3,000. Wayne testified that he had repaid only "a
few thousand dollars". He stated that he did not remember making
any payments or when the alleged payments had been made. We are
unpersuaded by this testimony, and neither petitioner presented
any objective evidence that any payment had been made on the
notes. This indicium supports a finding that the transfers did
not create bona fide debt.
g. Demand for Repayment
Respondent points to the fact that no demand for repayment
has been made as evidence that these transactions were not loans.
The record supports a finding that no steps were taken to enforce
the loans. Wayne was not aware of his duties as Plan trustee,
and he took no steps to collect on either his or Brian's notes.
Moreover, Wayne testified that he was not even aware of whether
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Brian was in default. This indicium supports a finding that
there was no bona fide debt.
h. Failure To Pay or Seek a Postponement
Brian testified that he repaid "a little bit" of the
transfers, "approximately $3,000". He further testified that he
made no repayments in 1992, 1993, or 1994. Supposedly a small
repayment was made in 1995, and then only after he became aware
that there might be "a problem" with the "loans". Brian made no
effort to seek a postponement of payment on the alleged
liability. Wayne testified that he had repaid only "a few
thousand dollars". He had no idea of when these repayments were
made. Wayne also made no effort to seek a postponement of
payment on the alleged liability. This indicium supports a
finding that there was no bona fide debt.
i. Conclusion
On the basis of our review of all relevant factors, we find
that the 1992 and 1993 transfers from the Plan to petitioners
were taxable distributions and not loans.
II. Distributions From Wayne's IRA
Respondent determined that Wayne received taxable
distributions from his IRA during 1993 and 1994 in the amounts of
$9,000 and $9,307, respectively. In his petition, Wayne contends
that he did not receive taxable premature distributions from his
IRA. In his response to respondent's request for admissions,
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Wayne further contends that the funds received from the IRA were
loans. Wayne did not address this issue at trial or on brief.8
Under section 408(d)(1), "any amount paid or distributed out
of an individual retirement plan shall be included in gross
income by the payee or distributee * * * in the manner provided
under section 72." See also Campbell v. Commissioner, 108 T.C.
54 (1997). Generally, any amount distributed from an IRA is
includable in the gross income of the recipient in the year in
which the distribution is received. Sec. 408(d)(1); sec. 1.408-
4(a)(1), Income Tax Regs. Because there is no evidence in the
record that Wayne made nondeductible contributions to his IRA, we
find that his tax basis in the IRA was zero. Sec. 1.408-4(a)(2),
Income Tax Regs.; see also sec. 72(e)(2)(B). Therefore, he is
afforded no credit for any investment in the IRA within the
meaning of section 72(e)(3)(A) and (6). See also Vorwald v.
Commissioner, T.C. Memo. 1997-15. The distributions are thereby
allocated to, and included in, Wayne's gross income as follows:
$9,000 for 1993 and $9,307 for 1994.
8
Wayne appears to have abandoned his untenable position
that the funds were received in the form of loans. Unlike a loan
from a qualified plan, a loan from an IRA to its owner is always
a prohibited transaction (there is no exception for loans from an
IRA to its beneficiary). Sec. 4975(d); Employee Retirement
Income Security Act of 1974, Pub. L. 93-406, sec. 408(d), 88
Stat. 829, 885. If such a loan was made, the IRA would lose its
exemption and all assets would be deemed distributed. Sec.
408(e)(1) and (2).
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III. Section 72(t) -- Additional Tax
Respondent determined a 10-percent additional tax under
section 72(t) for premature distributions made from a qualified
retirement plan to petitioners. Section 72(t) imposes an
additional tax on any amount received from a qualified retirement
plan equal to 10 percent of the amount includable in gross
income. For purposes of the 10-percent tax, a qualified
retirement plan includes an IRA described under section 408(a).
See sec. 4974(c)(4). Several exceptions to the imposition of the
additional tax are enumerated in section 72(t)(2). Petitioners
presented neither evidence nor argument in support of the
application of any of the exceptions. Therefore, we find that
petitioners are liable for the 10-percent additional tax under
section 72(t) as follows: Brian as to the entire 1992 Plan
distributions; Wayne as to the entire 1992 and 1993 Plan
distributions and as to the entire 1993 and 1994 IRA
distributions.
We have considered all other arguments made by the parties
and found them to be either irrelevant or without merit.
To reflect the foregoing,
Decisions will be entered
for respondent.