Thomas M. and Christine A. Fries - Page 12

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          entire capital base of $900.  No sinking fund or reserve existed            
          to insure repayment of the advance.  Instead, the shareholder               
          contributors expected to be repaid out of earnings from                     
          National's operations.                                                      
               4.  Right to Enforce Payment                                           
               If a fixed obligation to repay the advance exists, the                 
          transaction is indicative of a loan.  Estate of Mixon v. United             
          States, supra at 405.  Such an obligation is present in the                 
          instant case.  However, while petitioner's note was fully                   
          enforceable, he took none of the customary steps to assure                  
          repayment in the event the business failed.  No sinking fund was            
          established, and the note lacked even a modicum of security to              
          protect petitioner at least against the claims of unsecured                 
          creditors or subsequent lienholders.  Moreover, other than                  
          petitioner's self-serving testimony, no evidence was presented              
          that he ever demanded repayment of the note.                                
               This case is distinguishable from Baldwin v. Commissioner,             
          T.C. Memo. 1993-433, in which a partnership had experienced such            
          success in its first 9 months of operation that the taxpayer was            
          understandably not concerned with repayment of the advances he              
          made in the short term.  Here, there was no early indication of             
          success on the part of National.  In fact, the evidence all                 
          points to the fact that "from day one, the business went                    
          downhill".  While the Court recognizes that petitioner's concern            
          for his job might have made him reluctant to badger the other               




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