- 14 - 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.Page: Previous 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Next
Last modified: May 25, 2011