* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAR 23 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

KENT JENSEN; CAROL JENSEN,

Petitioners-Appellants,

v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee. No. 98-9021 (T.C. No. 20121-94) (Petition for Review)

ORDER AND JUDGMENT *

Before BALDOCK , HENRY , and MURPHY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.-2-

Petitioners Kent Jensen and Carol Jensen appeal fro m an order of the United States Tax Court, which upheld respondent’s assessment of deficiencies against petitioners in income tax due for tax years 1988, 1989 and 1990. We affirm.

I. Jay Jensen, petitioner Kent Jensen’s father, devise d a formula for creating artificial fingernails. In July 1984, petitioners incorporated K & C Industries (“K&C”), a Utah business corporation, to make comme rcial use of the formula. Initially, petitioners each contributed assets havi ng a net value of $2,941 to K&C. For this contribution, they each received 5,0 00 shares of K&C stock. Additionally, petitioners contributed trade fixture s, a computer system and intangible assets consisting of the fingernail form ula and their expertise in the beauty products business. In 1985, K&C had gross receipts of $401,100 and gro ss profit of $260,715, but operated at a taxable loss of $188,682. That y ear, petitioners paid themselves a salary of $79,300 from K&C. In 1986, K&C had gro ss receipts of $468,321 and gross profit of $304,409, but operated at a taxable loss of $233,767; petitioners paid themselves a salary of $70,000 from K&C. By the middle of 1987, K&C was out of business. Pe titioner Kent Jensen testified that K&C failed in part because it grew t oo fast. Lacking sufficient cash2 An exhibit prepared by petitioners shows that they made loans to K&C in

the amount of $132,538.35. See Ex. 29. The factual stipulation of the parties, however, states that petitioners “transferred funds ” in the amount of $129,682. See Stip. of Facts at 5, ¶ 22. -3- flow to pay its suppliers, K&C had been forced to s eek lines of credit from factoring companies. On June 19, 1987, one of thes e companies, Commercial Factors of Salt Lake City, Inc., entered K&C’s busi ness and removed most of its assets, files and records. K&C shut down completel y after that date. In the aftermath of K&C’s failure, petitioners clai med a deduction for bad business debt in the amount of $128,841 on their 19 87 personal income tax return. In support of the deduction, petitioners claim theyhad loaned K&C the sum of $129,682 between 1984 and 1987. 2Included in this sum was $94,000 which Jay Jensen had loaned to petitioners. Respondent denie d the deduction and related net operating loss carryforwards for 1988, 1989 and1990, and petitioners filed this action in Tax Court. Petitioners argue in the alternative that they were either entitled to a business bad debt deduction with respect to the all eged loans to K&C, or that they were entitled to a 26 U.S.C. § 1244 ordinary loss d eduction with respect to 40,000 shares of K&C stock that had been issued to Jay Jen sen. The Tax Court rejected both of these contentions and disallowed the claime d deductions.

II.-4- Decisions of the United States Tax Court are review ed in the same manner and to the same extent as decisions of the district courts in civil actions tried without a jury. We review the Tax Court’s factual findings for clear error and its legal conc lusions de novo. Findings of law and of ultimate fact derived from applying legal principles to subsidiary facts are subject to de novo review. Twenty Mile Joint Venture, PND, Ltd. v. Commissioner , 200 F.3d 1268, 1275 (10th Cir. 1999) (quotations and citations omitted)

.

III. The Internal Revenue Code allows an individual taxp ayer to deduct business debts which become worthless against ordinary income. See 26 U.S.C. § 166(a), (d)(1)(A). To give rise to a deduction, the debt must be a “bona fide debt.” 26 C.F.R. § 1.166-1(c). “A bona fide debt is a debt which arises from a debtor-creditor relationship based upon a valid andenforceable obligation to pay a fixed or determinable sum of money.” Id. The regulations specifically exclude contributions to capital from the definition of a bona fide debt. See id. Determination of whether a particular debt is a bon a fide debt for tax purposes “depends on the facts and circumstances of each case, with the taxpayer bearing the burden of proof.” Kean v. Commissioner , 91 T.C. 575, 594 (1988). The ultimate issue to be resolved is whether there was a “genuine intention to create a debt, with a reasonable expectation of rep ayment, and did that intention comport with the economic reality of creating a deb tor-creditor relationship?”-5-

Dixie Dairies Corp. v. Commissioner , 74 T.C. 476, 494 (1980) (quotation omitted), acq

. 1982-2 C.B. Courts considering this issue, while recognizing that no one factor is controlling, have looked at a vari ety of relevant factors. The Tax Court has summarized some of these factors as follo ws: [1] The names given to the certificates evidencing the indebtedness; [2] presence or absence of a fixed maturity date; [ 3] source of payments; [4] right to enforce payments; [5] partic ipation in management as a result of the advances; [6] status of the advances in relation to regular corporate creditors; [7] intentof the parties; [8] identity of interest between creditor and stockholder; [9] thinness of capital structure in relation to debt; [10] abil ity of corporation to obtain credit for outside sources; [11] use to whic h advances were put; [12] failure of debtor to repay; and [13] riskinvolved in making advances. Calumet Indus., Inc. v. Commissioner , 95 T.C. 257, 285 (1990); see also Stinnett’s Pontiac Serv., Inc. v. Commissioner , 730 F.2d 634, 638 (11th Cir. 1984). 1. Treatment of funds on documents prepared by the par ties At trial, petitioners presented four promissory not es payable from K&C to themselves, which they claimed represented K&C’s ob ligation to repay the funds they loaned to it: Date Payee Amount July 23, 1984 Kent Jensen $7,341 July 23, 1984 Carol Jensen $7,341 March 21, 1985 Kent Jensen $85,000-6-

February 12, 1986 Carol Jensen $30,000 TOTAL: $129,682
Promissory notes were prepared to represent K&C’s i ndebtedness to petitioners. This factor therefore weighs in favorof petitioners. 2. Presence or absence of due dates for repayment of funds This factor favors petitioners. The notes do have fixed repayment dates. 3. Likely source of repayment of funds Kent Jensen testified that in his opinion, K&C had sufficient cash flow to repay the funds advanced to it. Expectation of rep ayment solely from corporate earnings is indicative of capitalization rather than a bona fide debt, even if the expectation of repayment is reasonable. See Roth Steel Tube Co. v. Commissioner , 800 F.2d 625, 631 (6th Cir. 1986). As a fallback position, petitioners argue that the fingernail formula could have been sold at a profit, and used to repay the n otes. Given that exploitation of the formula represented the raison d’être of K&C, however, the Tax Court could properly have rejected petitioners’ theory that the y intended to sell the formula rather than see K&C default on the notes to them. Cf. Dixie Dairies , 74 T.C. at 495 (stating that although taxpayer documented advance to related entity with demand note, it was clear that taxpayer would not h ave demanded payment if it would have imperiled the financial condition of rel ated entity; therefore,-7-

repayment was dependent upon the fortunes of the bu siness and was indicative of equity). 4. Efforts to enforce repayment of the funds The Tax Court found that petitioners received no re payment of the funds advanced and no payments of interest thereupon. Pr incipal payments on each of the notes were not due until after the date on whic h K&C ceased operations. Each of the notes called for annual payments of acc rued interest, however, which was not paid. By contrast, petitioners did pay int erest to outside creditors. 5. Participation by transferor in corporate management Petitioners held all of the corporate offices. Kent Jensen was president and treasurer of K&C, and Carol Jensen was its Vice Pre sident and Secretary. Kent, Carol and Jay Jensen served as the corporation’s bo ard of directors. 6. Subordination of right to repayment The Tax Court made no findings on this point. As r espondent points out, however, petitioners obtained no security interest in K&C’s assets, whereas other creditors did obtain such security. 7. Intention of the parties Petitioners argue that the promissory notes reveal their intention to loan money to the corporation rather than to capitalize it. The existence of promissory notes certainly weighs in petitioners’ favor. Howe ver, as the Tax Court noted,-8-

these notes were not issued contemporaneously with the advances and do not match the amount of the advances. Moreover, even i f petitioners had the intent to create a bona fide debt, the economic situation at the time petitioners made the advances weighs in favor of the advances being cons idered capital contributions. See id. at 494. K&C lost large sums of money each year an d required contributions to capital just to stay in business. 8. Whether transferor was also a shareholder Petitioners were both shareholders of K&C. They ar gue, however, that their loans to K&C were not in proportion to their stock ownership. This argument presumes that the certificate in favor of Jay Jensen, granting him eighty percent of the stock, should have been issued to Ke nt Jensen. As will be seen, the Tax Court found that petitioners did not carry thei r burden as to this argument. If Jay Jensen in fact owned eighty percent of K&C, the advances made by petitioners were roughly proportionate to their per centage of stock ownership, which is indicative of an equity investment. See Roth Tube , 800 F.2d at 630. 9. Capitalization of the corporation The Tax Court found that the initial capitalizationof K&C was very slim, considering its liabilities. Petitioners argue that in reaching this conclusion, the Tax Court failed to factor in the value of trade fi xtures, the computer system and intangible assets such as the fingernail formulatio n.-9-

Petitioners argue that, considering these additiona l factors, their debt-toequity ratio was 1 to 1. While their figures may b e accurate with regard to their “inside” ratio (shareholder debt to shareholder equ ity), the pertinent ratio for purposes of this factor is the “outside” ratio, whi ch compares the corporation’s total liabilities to shareholder equity. See Bauer v. Commissioner , 748 F.2d 1365, 1368 (9th Cir. 1984); see also Ginsberg v. Commissioner , No. 92-2263, 1993 WL 315682, at **3 (6th Cir. Aug. 18, 1993) (unpublishe d disposition) (discussing outside ratio in context of § 166(a) determination of debt versus equity). The outside ratio is more relevant because it is the ratio a prospective creditor would have considered when deciding whether to advance fu nds. It is not possible to calculate the outside ratio h ere, because petitioners did not present information such as financial statement s or balance sheets for K&C from which the corporation’s total liabilities coul d be determined. We note, however, that K&C reported large cumulative net ope rating losses on its tax returns, which suggests low net shareholder equity. Therefore, this factor weighs against petitioners. 10. Availability to K&C of outside financing The Tax Court found that K&C was unable to obtain o utside financing. Petitioners argue that they had $440,000 of availab le unsecured credit, that Interlake Thrift provided them with $272,000 in sec ured financing, and that-10-

Commercial Factoring gradually increased their cred it limit. In assessing this factor, however, we look not only at whether outsid e credit was available in an absolute sense, but also at whether a reasonable cr editor would have acted in the same manner as did the taxpayers. See Roth Steel Tube , 800 F.2d at 631. As respondent notes, the loans from outsiders were on much less favorable conditions to K&C than the alleged loans from petitioners. Th erefore, this factor does not favor petitioners. 11. Use of the funds by the corporation Petitioners argue that the funds they allegedly loaned to K&C were used to continue expansion of the corporation, to fulfill i ts inventory needs, and to promote the sales of its products. Given the sizeable salaries petitioners drew from K&C during its brief existence, and the large losses reported on its tax returns, however, it is more plausible to conclude that K&C needed the funds advanced simply to meet expenses. 12. Repayment history It is true, as petitioners note, that the principle amount of the notes was not due until long after K&C went out of business. Int erest payments were due, however, during the corporation’s existence, but no t made, suggesting an intent to capitalize the corporation rather than to deal with it as a creditor. See Dixie Dairies , 74 T.C. at 495.3 Respondent concedes that petitioners are entitled t o a § 1244 deduction for

the 10,000 shares issued to them. -11- 13. Risk involved in making the transfers The risk was serious here, because of the secured d ebts to prior creditors and lack of net profits. This factor cuts against petitioners. Having considered the evidence in light of factors generally utilized in resolving such questions, we conclude that the advances were capital contributions. The Tax Court did not commit revers ible error in determining that petitioners were not entitled to the claimed bad de bt deduction under § 166.

IV. We turn to petitioners’ alternative claim, that the y are entitled to an ordinary loss deduction under § 1244 for the value of the 40,000 shares issued to Jay Jensen. 3 The issue to be resolved here is whether petition ers owned the 40,000 shares. Petitioners bore the burden of proof on this issue. See Tax Court R. Prac. & Proc. 142(a); Preslar v. Commissioner , 167 F.3d 1323, 1326 (10th Cir. 1999). Kent Jensen testified that Jay Jensen was concernedabout his lack of security for the advances in favor of K&C. Therefo re, all the shares of K&C were to be pledged to Jay Jensen. By certificate d ated August 5, 1986, however, 40,000 out of the 50,000 shares of K&C were issued directly to Jay Jensen.4 Petitioners argue that respondent has raised an iss ue about the “absence of

business records” for the first time on appeal. Pe titioners mischaracterize respondent’s argument, however. Respondent is not arguing that petitioners were not entitled to the § 1244 deduction because they d id not keep the records required by 26 C.F.R. § 1.1244(e)-1. Rather, respo ndent is questioning their failure to present such business records, which § 1 .1244(e)-1(a) required them to keep, at trial to meet their burden of proof on the issue of whether the stock was actually issued to Kent Jensen. This argument fall s squarely within the disputed § 1244 issue, raised below. -12- Petitioners claim that the stock certificate contai ns a clerical error, and that the shares should have been issued to Kent Jensen r ather than to Jay Jensen directly. They failed to produce records establish ing that Kent was listed as the owner of the 40,000 shares on the books and records of the corporation. 4They also failed to call the secretary who allegedly mad e the mistake. The only evidence they presented was Kent Jensen’s self-serv ing testimony about the mistake, and the certificate itself which was issue d to Jay Jensen but also pledged to him on its reverse. Given the state of the evid ence, we cannot say that the Tax Court incorrectly determined that petitioners faile d to meet their burden of showing that they owned the stock and were entitledto the loss deduction under § 1244.5 Petitioners raise additional arguments which the Tax Court did not reach

and which we need not resolve, given our dispositio n of this case. They contend that the funds allegedly loaned to K&C constituted a “business bad debt” for purposes of § 166. They also take issue with respo ndent’s alternative argument, not relied upon by the Tax Court, that the claimed net operating loss deductions were not allowable because they were offset by disc harge of indebtedness income in petitioners’ personal bankruptcy. See 26 U.S.C. § 108(b). -13- The decision of the Tax Court is AFFIRMED. 5

Entered for the Court

Bobby R. Baldock Circuit Judge