Deja Vu, Inc. - Page 13

                                       - 13 -                                         
               Petitioner did not receive (nor did it attempt to receive)             
          any type of security interest or personal guarantees for its                
          advances.  If Adult Fun’s business did not prosper, petitioner              
          could only recover its advances from its share of the proceeds              
          which remained after obligations to secured creditors were                  
          satisfied.  Indeed, when petitioner accepted an assignment from             
          Adult Fun in 1992, all that remained were various leasehold                 
          improvements.  Mr. Krontz explained that he did not require                 
          security because of the relationship between Adult Fun and                  
          petitioner as members of Mr. Mohney's enterprises, their physical           
          proximity to each other, and his business relationship with Adult           
          Fun's president.  We find this testimony unpersuasive of a bona             
          fide debtor-creditor relationship.   We do not believe that an              
          outside lender would have loaned substantial sums to Adult Fun in           
          an arms-length transaction under the facts at hand.  Once again,            
          the actions of the parties to the Notes speak louder than words,            
          and those actions do not support a true debtor-creditor                     
          relationship with respect to the advances.                                  
               This factor weighs toward equity.                                      
               viii.   Inability to Obtain Financing                                  
               The question of whether a transferee could have obtained               
          comparable financing is relevant in measuring the economic                  
          reality of a transfer.  Estate of Mixon v. United States,                   
          464 F.2d at 410; Nassau Lens Co. v. Commissioner, 308 F.2d 39, 47           
          (2d Cir. 1962) remanding 35 T.C. 268 (1960).  Evidence that the             

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