Below Market Loans: From Abuse to Misuse - A Sports Illustration

Abstract

Below market loans have been traditionally used as substitutes for gifts, salaries, and dividends for the primary purpose of tax avoidance in the transfer of wealth. The Supreme Court's opinion in Dickman v. Commissioner subjected both demand and term loans in an intrafamilial setting to the federal gift tax. Congress, while subjecting all below market loans to either income or gift tax, applied different valuation formulas to term and demand loans and, in so doing, favored the use of demand loans as a salary substitute. This Article analyzes the current status of below market loans by examining their use in a typical business setting - the professional sports industry. Dean Closius and Professor Chapman argue that Congress should establish tax neutrality as between term and demand loans. This result can be achieved by providing an income tax for demand loans, by ascribing the borrower's below market benefit to the lender, or by statutorily imputing a term of years to all demand loans.