- 23 - we expanded our analysis and considered factors beyond physical control over the borrowed funds. Similarly, in this case, we cannot ignore the reality that a borrower who borrows funds for the purpose of satisfying an interest obligation to the same lender in order to avoid a default does not have unrestricted control over the borrowed funds in any meaningful sense. In light of our expanded view of the considerations that must be taken into account in determining whether a borrower has unrestricted control over borrowed funds, our earlier opinions in Burgess, Burck, and Wilkerson, have been sapped of much of their vitality.20 The issue before us arises when a borrower borrows funds from a lender and immediately satisfies an interest obligation to the same lender. In order to determine whether interest has been paid or merely deferred, it is first necessary to determine whether the borrowed funds were, in substance, the same funds used to satisfy the interest obligation. Whether the relevant transactions were simultaneous, whether the borrower had other funds in his account to pay interest, whether the funds are traceable, and whether the borrower had any realistic choice to use the borrowed funds for any other purpose would all be 20Recent opinions indicate that an expanded "unrestricted control" test will likely produce the same result as the test applied in the Fifth and Ninth Circuit Courts of Appeals. See Alexander v. Commissioner, T.C. Memo. 1995-334; Blumeyer v. Commissioner, T.C. Memo. 1992-647; Franco v. Commissioner, supra.Page: Previous 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Next
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