- 14 - the courts. The Court of Appeals for the Fifth Circuit has stated: Primary reliance upon subjective indications of intent is simply not an effective way of resolving * * * [the debt versus equity] problem. In a land of hard economic facts, we cannot root important decisions in parties' pious declarations of intent. * * * [Texas Farm Bureau v. United States, 725 F.2d 307, 314 (5th Cir. 1984).] Thus, we must look not simply at the pronouncements of the parties, but also at the circumstances surrounding the transaction to reveal their intent. Tyler v. Tomlinson, 414 F.2d 844, 850 (5th Cir. 1969). If a corporation does not make required payments or a shareholder does not enforce his right to receive payments, an advance appears more like equity than debt. Ambassador Apartments, Inc. v. Commissioner, 50 T.C. 236, 246 (1968), affd. 406 F.2d 288 (2d Cir. 1969). In the instant case, petitioner stated in his brief that "The terms and conditions of the second mortgage and the loan were identical. By the nature of this obligation it is clear that the debt was obviously a loan and not a contribution to any equity." However, the underlying note detailing the mortgage's terms is not part of the record. (While Brands expressed general knowledge of a mortgage on petitioner's residence held by Tavistock, he was not aware of the specifics of that transaction.) Even if petitioner subjectively intended to make a loan, the circumstances surrounding the advance point to a contribution toPage: Previous 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Next
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