- 39 - 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 andPage: Previous 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 Next
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