- 8 - given to the instruments, if any, evidencing the indebtedness; (2) the presence or absence of a fixed maturity date and schedule of payments; (3) the presence or absence of a fixed interest rate and interest payments; (4) the source of repayments; (5) the adequacy or inadequacy of capitalization; (6) the identity of interest between the creditor and stockholder; (7) the security, if any, for the advances; (8) the corporation's ability to obtain financing from outside lending institutions; (9) the extent to which the advances were subordinated to the claims of outside creditors; (10) the extent to which the advances were used to acquire capital assets; and (11) the presence or absence of a sinking fund to provide repayment. Id.; Raymond v. United States, supra at 190-191; Austin Village, Inc. v. United States, 432 F.2d 741, 745 (6th Cir. 1970); Berthold v. Commissioner, 404 F.2d 119, 122 (6th Cir. 1968), affg. T.C. Memo. 1967-102; Smith v. Commissioner, 370 F.2d 178, 180 (6th Cir. 1966), affg. T.C. Memo. 1964-278. In distinguishing debt from equity, the economic substance of the transaction prevails over form. Byerlite Corp. v. Williams, 286 F.2d 285, 291 (6th Cir. 1960). We turn to these factors to determine whether petitioner and Adult Fun intended to create a debt, and whether their intention comported with the economic reality of a debtor-creditor relationship.Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Next
Last modified: May 25, 2011