When the sole shareholder of a Sub S pumps in cash to run the business, and claims it’s a loan and not a (non-deductible) capital contribution, whereof repayment is return of principal and not wages or a distribution, IRS looks for the Big 13 (count ‘em, 13) indicia that a loan was intended: (1) the names given to the documents that would be evidence of the purported loans; (2) the presence or absence of a fixed maturity date; (3) the likely source of repayment; (4) the right to enforce payments; (5) participation in management as a result of the advances; (6) subordination of the purported loans to the loans of the corporation’s creditors; (7) the intent of the parties; (8) identity of interest between creditor and stockholder; (9) the ability of the corporation to obtain financing from outside sources; (10) thinness of capital structure in relation to debt; (11) use to which the funds were put; (12) the failure of the corporation to repay; and (13) the risk involved in making the transfers.

You’ll find this list, and some cases applying the factors, at page 9 of Scott Singer Installations, Inc., 2016 T. C. Memo. 161, filed 8/24/16.

Scott made loans to his wholly-owned Sub S, of which he was the only director and officer and called all the shots. And there were no notes, maturity dates or stated rates of interest.

But Scott booked all the loans as loans, and when things were good paid some of them back. Scott sold kitchen cabinets and repaired, serviced and fitted out RVs, but the 2008 meltdown seriously cramped his cashflow, and he borrowed from friends and family and used his personal credit card to run the business.

The Sub S paid for some of Scott’s personal expenses, which he claimed were repayments of the loans.

You were expecting income tax here, weren’t you? But this is a FICA-FUTA case. Was what Scott got from the Sub S wages subject to FICA-FUTA, or repayment of loans?

Judge Vasquez doesn’t go out on a limb here. “Petitioner does not object to respondent’s determination that Mr. Singer was its employee for the years at issue, and the evidence clearly supports such a finding.  As president of the company, Mr. Singer was petitioner’s only officer.  Furthermore, he performed substantial services for petitioner.  Accordingly, we find that Mr. Singer was an employee of petitioner for the years at issue.” 2016 T. C. Memo. 161, at p. 8.

So Scott is up for the FICA-FUTA, right? Just run the checklist.

Not quite.

“Rather than analyze every factor on the debt-equity checklists, we confine our discussion to those points we find most pertinent.  In our analysis we look at the relative financial status of petitioner at the time the advances were made; the financial status of petitioner at the time the advances were repaid; the relationship between Mr. Singer and petitioner; the method by which the advances were repaid; the consistency with which the advances were repaid; and the way the advances were accounted for on petitioner’s financial statements and tax returns.  After looking at all these criteria in the light of the other factors traditionally distinguishing debt from equity, particularly the intent factor, we believe Mr. Singer intended his advances to be loans and we find that his intention was reasonable for a substantial portion of the advances.  Consequently, we also find that petitioner’s repayments of those loans are valid as such and should not be characterized as wages subject to employment taxes.” 2016 T. C. Memo. 161, at pp. 10-11.

Scott always booked the loans as such, the Sub S paid back by paying Scott’s personal expenses consistently and timely, and, most importantly, the Sub S was paying Scott’s expenses even when it was running at a loss.

A creditor gets paid – win, lose or draw.  One making a capital contribution, as IRS claims Scott did, only gets paid if the operation makes money.

When the business was doing well (and it did do well before 2008), Scott had a reasonable expectation of repayment, so the loans for those years are loans. And the loan balances outstanding in the good years were greater than the amounts repaid, so no distribution.

But the post-2008 loans weren’t: Scott had little to no chance of repayment.

Scott wins.

And once again acknowledgement to James R. Monroe, Esq.  See my blogpost “When You’re Down and Out – Part Deux,” 6/28/16.

Not big dollars here, so maybe no appeal, but if I were IRS I’d go for it.