J.J. Zand - Page 187

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          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 McCabe            





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