Stephen R. and Mary K. Herbel - Page 39

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             had the ability to control the repayment.  Id. at 197.                   
             Accordingly, we held "the Raiders' dominion and control                  
             over the funds at the time they received them was                        
             sufficient to require their inclusion in the Raiders' gross              
             income."  Id.                                                            
                  The distinction between a loan and an advance payment               
             turns upon the nature of the rights and obligations that                 
             the payor and recipient assume when the payment is made.                 
             Commissioner v. Indianapolis Power & Light Co., supra at                 
             209; Highland Farms, Inc. v. Commissioner, supra at ___,                 
             (slip op. at 24-25); Oak Industries, Inc. v. Commissioner,               
             supra at 568.  Accordingly, in this case we must analyze                 
             the terms of the settlement under which Arkla made the                   
             subject payment of $1,850,000 to Malibu.                                 
                  At the outset, we note that the parties to the                      
             settlement did not terminate the Contract as part of the                 
             settlement, nor did they amend section 9 of the Contract                 
             which includes the so-called take or pay provisions under                
             which the dispute arose.  Therefore, Malibu's share of the               
             natural gas produced from "all Contract Wells" remained                  
             committed for sale to Arkla under the Contract.  Similarly,              
             Arkla remained obligated under section 9 of the Contract to              
             take a minimum volume of gas on an annual basis or to pay                
             Malibu for a volume of gas "equal to the difference between              
             the volume actually received during the Contract Year and                






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