- 260 - that there was no ordinary income or short-term gain to be recognized upon his contribution to Kenyon College because his basis exceeded fair market value. To the contrary, respondent takes the position that the purported loans by petitioner to McZand Corporation were actually contributions by petitioner to McZand's capital. Thus, it is argued, because the claimed debt was capital and petitioner owned 100 percent of McZand stock both before and after the contribution, there was no consideration paid by petitioner for receipt of the donated property. As set forth in Segel v. Commissioner, 89 T.C. 816 (1987), when determining whether shareholder advances are debt or equity, cases have generally relied on various factors which include the common identity between the shareholders and the putative creditors, the extensive participation in management by such creditors, the corporate ability to borrow from a commercial or nonrelated source at similar rates, terms and other conditions, the thinness of the capital structure of the corporation, and the relative position of the putative creditors to other creditors. See Estate of Mixon v. United States, 464 F.2d 394, 402 (5th Cir. 1972). Here there was a 100-percent identity between shareholders and putative creditors. Prior to October 1979 McZand stock was owned 50 percent by the Zand family and 50 percent by the McCabePage: Previous 250 251 252 253 254 255 256 257 258 259 260 261 262 263 264 265 266 267 268 269 Next
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