Joseph Nachman - Page 21

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            Offshore, Inc. v. Commissioner, 97 T.C. at 604-605; Leach Corp.                            
            v. Commissioner, 30 T.C. 563, 579 (1958).                                                  
                  Petitioner and his brother each held 50 percent of Swirl's                           
            stock.  Petitioner advanced $350,000, and his brother advanced                             
            $250,000.  The $350,000 is about 58 percent of $600,000 ($350,000                          
            plus $250,000).  Petitioner's advance was neither proportionate                            
            nor sharply disproportionate to his share of Swirl stock.  This                            
            factor is neutral.                                                                         
                  4.    Factors Which Favor Respondent                                                 
                        a.    Whether The Loan is Subordinated to Other                                
                              Obligations                                                              
                  If repayment of an advance is subordinated to claims of                              
            other creditors, it is more likely to be equity.  American                                 
            Offshore, Inc. v. Commissioner, supra at 603; Ambassador                                   
            Apartments, Inc. v. Commissioner, 50 T.C. at 246; 2554-58 Creston                          
            Corp. v. Commissioner, 40 T.C. at 937 n.3.  The notes petitioner                           
            received from Swirl were subordinated to the interests of                                  
            Chemical Bank.  This factor suggests that the transfer was                                 
            equity.                                                                                    
                        b.    Whether Swirl Repaid the Amount Advanced When Due                        
                  Subsequent payment history may show whether the recipient                            
            of an advance intended to repay it when it was made.  American                             
            Offshore, Inc. v. Commissioner, supra at 606; see Diamond Bros.                            
            Co. v. Commissioner, 322 F.2d 725, 732 (3d Cir. 1963), affg. T.C.                          
            Memo. 1962-132; Wilbur Sec. Co. v. Commissioner, 279 F.2d 657,                             





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