William C. Beretta - Page 14

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            existed for the purported loans, and no record was ever kept of                             
            the amount of money that Mr. Beretta was receiving from the two                             
            restaurants.  In addition, the amount of money that Mr. Beretta                             
            skimmed each month depended directly upon the earnings of the                               
            restaurants.  These factors indicate that the transfers were not                            
            loans and that the repayments were not loan repayments.  Id.                                
                  Third, Mr. Beretta concedes that he never received interest                           
            payments on the alleged loans.  “[A] true lender is concerned                               
            with interest.”  Curry v. United States, 396 F.2d 630, 634 (5th                             
            Cir. 1968).  If the lender does not insist on interest payments,                            
            he is, therefore, “interested in the future earnings of the                                 
            corporation or the increased market value of his interest.”  Id.                            
            Moreover, while the notes evidencing the transfers called for                               
            interest payments, none were actually made.  The absence of                                 
            interest supports our ultimate finding that the advances were not                           
            loans.                                                                                      
                  Based on all of the facts and circumstances surrounding the                           
            transfer of funds, we hold that Mr. Beretta's transfers to the                              
            restaurants were not loans.  Further, the skimming payments to                              
            petitioner were being divided with his coowners based on                                    
            ownership.  In that regard, there is no evidence that                                       
            petitioner's coowners also had made any advances that could be                              
            considered loans.                                                                           







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