Thomas M. and Christine A. Fries - Page 14

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          the courts.  The Court of Appeals for the Fifth Circuit has                 
          stated:                                                                     
               Primary reliance upon subjective indications of intent                 
               is simply not an effective way of resolving * * * [the                 
               debt versus equity] problem.  In a land of hard                        
               economic facts, we cannot root important decisions in                  
               parties' pious declarations of intent.  * * * [Texas                   
               Farm Bureau v. United States, 725 F.2d 307, 314 (5th                   
               Cir. 1984).]                                                           
               Thus, we must look not simply at the pronouncements of the             
          parties, but also at the circumstances surrounding the                      
          transaction to reveal their intent.  Tyler v. Tomlinson, 414 F.2d           
          844, 850 (5th Cir. 1969).  If a corporation does not make                   
          required payments or a shareholder does not enforce his right to            
          receive payments, an advance appears more like equity than debt.            
          Ambassador Apartments, Inc. v. Commissioner, 50 T.C. 236, 246               
          (1968), affd. 406 F.2d 288 (2d Cir. 1969).                                  
               In the instant case, petitioner stated in his brief that               
          "The terms and conditions of the second mortgage and the loan               
          were identical.  By the nature of this obligation it is clear               
          that the debt was obviously a loan and not a contribution to any            
          equity."  However, the underlying note detailing the mortgage's             
          terms is not part of the record.  (While Brands expressed general           
          knowledge of a mortgage on petitioner's residence held by                   
          Tavistock, he was not aware of the specifics of that                        
          transaction.)                                                               
               Even if petitioner subjectively intended to make a loan, the           
          circumstances surrounding the advance point to a contribution to            




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