- 12 - 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 otherPage: Previous 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Next
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