Charles H. Davison and Leslie B. Davison - Page 23

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          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.           




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