Philip A. Sellers - Page 14




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          Commissioner, 97 T.C. 579, 602 (1991).  The absence of a fixed              
          maturity date or repayment schedule may indicate a contribution             
          to capital rather than a loan.  See Stinnett’s Pontiac Serv.,               
          Inc. v. Commissioner, supra; Estate of Mixon v. United States,              
          supra at 404; American Offshore, Inc. v. Commissioner, supra at             
          602.                                                                        
               Five out of seven of petitioner’s advances to Gandy’s had no           
          fixed maturity date and no repayment schedule.  The notes                   
          reflecting the other two advances had 1-year maturity dates, but            
          the significance of this factor is diminished by Gandy’s failure            
          to make repayments in accordance with the maturity dates and                
          petitioner’s failure to make any efforts to collect.                        
               This factor weighs against a bona fide debtor-creditor                 
          relationship.                                                               
               3.  Source of the Payments                                             
               Repayment that depends on corporate earnings has the                   
          appearance of a contribution to capital.  See Estate of Mixon v.            
          United States, supra at 405; see also Stinnett’s Pontiac Serv.,             
          Inc. v. Commissioner, supra at 638-639.  Gandy’s controller                 
          testified that repayment of the advances from petitioner was                
          contingent on the company’s making a profit.  Similarly,                    
          petitioner testified that in order for his advances to be repaid,           
          Gandy’s had to operate successfully.                                        
               This factor weighs toward equity.                                      






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