Thomas M. and Christine A. Fries - Page 15

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          capital.  Petitioner never formally demanded repayment.  Despite            
          engaging in a restructuring of the Action note, he advocated no             
          similar measure for his note.  National also did not appear to              
          treat the contribution as a debt inasmuch as no payment of                  
          principal or interest ever occurred, it did not request a                   
          deferment, and it effectively subordinated the note to the Action           
          note.  Cf. Dallas Rupe & Son v. Commissioner, 20 T.C. 363, 369-             
          370 (1953) ("here a debt was owed to petitioners by the symphony            
          and was definitely so recognized by all parties concerned.").  In           
          any event, National's books or tax returns are not in evidence to           
          prove it viewed the advance otherwise.                                      
               The only indication that National ever regarded petitioner             
          as a creditor came at a shareholders' meeting after the consent             
          judgment had been entered against it in early 1994.  At that                
          time, the shareholders voted to satisfy petitioner's claim by               
          awarding him stock in National's subsidiary corporations.                   
          However, this does not necessarily evince National's intent at              
          the time the advance was made.  Furthermore, the fact that                  
          petitioner won a judgment in State court for the amount of                  
          principal plus interest owing on the note does not dictate that             
          the advance must be deemed a loan for Federal tax purposes.  See            
          Road Materials, Inc. v. Commissioner, 407 F.2d 1121, 1124 n.3               
          (4th Cir. 1969), ("It does not follow * * * that an advancement             
          qualifying as a debt under state law must be treated as a debt              






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