dissenting: As the trier of fact, I respectfully dissent from the majority’s conclusion that the loans to Bennett & Sons (partnership) constitute direct borrowings from the trust by the grantors within the meaning of section 675(3). Rather, I would hold on the authority of our decision in Buehner v. Commissioner, 65 T.C. 723 (1976), that the loans in question are neither direct nor indirect borrowings by the grantors.
The term "indirectly,” as used in section 675(3), is not defined in the Clifford regulations1 or in any of the committee reports on subpart E.2 Section 1.675-1, Income Tax Regs., does not elaborate on "indirectly.” However, section 1.675-l(a), Income Tax Regs., does characterize the provisions of section 675 as providing:
in effect that the grantor is treated as the owner of any portion of a trust if under the terms of the trust instrument or circumstances attendant on its operation administrative control is exercisable primarily for the benefit of the grantor rather than the beneficiaries of the trust. * * * [Emphasis added.]
In Buehner we looked to the bona fides of the loans and the identity of the borrower. There was no evidence therein that the loans were "indirectly diverted” for the grantor’s benefit.3 Similarly, in the present case the loans were bona fide, carried market rate interest, and were in no way diverted for petitioners’ benefit.
I am mindful that the loans in Buehner were made to a corporation while the loans herein were made to a general partnership. As pointed out by the majority, two tax differences could result from this distinction. Borrowing by a general partnership may benefit the partners by increasing the basis of each partner’s partnership interest (see sec. 752(a)), and thus possibly lessening the effect of the limitation on allowance of partnership losses provided in section 704(d). Additionally, interest paid by the partnership "flows through” to the partner’s benefit. See sec. 702(a). Generally, these benefits, which are distinctive to a partnership, would arise from borrowed funds regardless of the source of such funds. Bennett & Sons operated profitably during these years, thus section 704(d) did not apply to petitioners. Although petitioners did individually receive some benefit resulting from the interest paid by Bennett & Sons to the trust, this benefit would have been obtained from loans for operating capital regardless of the source of the loans. The loans herein carried interest at prevailing rates and were repaid in full prior to termination of the trust. Petitioners herein acted in their fiduciary capacity as trustees in loaning trust funds to Bennett & Sons, not as members of the partnership.4 On these facts, I would hold that these loans were not made directly or indirectly to the grantors within the meaning of section 675(3).
I must also protest the majority’s gratuitous comment that "under the facts and circumstances of a particular case, the trustees’ misadministration might be evidence of * * * the existence of an implied agreement pursuant to which the grantors have retained control over the beneficial enjoyment of the trust or corpus” within the meaning of section 674(a). This Court has never addressed the issue of whether an implied agreement can constitute a power of disposition under 674(a). The issue is not raised here. Therefore we should not decide it.
See sec. 29.22(a)-21(e), Regs. 111; sec. 39.22(a)-21(e), Regs. 118.
See H. Rept. 1337, 83d Cong., 2d Sess. A216 (1954); S. Rept. 1622, 83d Cong., 2d Sess. 369-370 (1954).
In Buehner we stated:
"The debt in question is reflected by [the corporation] on its financial statements. The funds acquired were used by [the corporation] for internal corporate purposes. There is no indication that any of these funds were indirectly diverted for petitioner’s benefit. Certainly, as a shareholder, petitioner received a benefit from this loan but not to any degree greater than the benefit that accrued to the other shareholders, creditors, and employees of [the corporation]. [Buehner v. Commissioner, 65 T.C. 723, 742.]”
Cf. sec. 707(a) which reflects the entity concept of partnerships by providing that for purposes of subch. K "If a partner engages in a transaction with a partnership other than in his capacity as a member of such partnership, the transaction shall * * * be considered as occurring between the partnership and one who is not a partner.”