- 8 -8 Recognizing that no single factor is determinative, the courts have applied a variety of factors in deciding whether a guarantee was a loan or a capital contribution. Among these factors are the name given to the certificate evidencing the indebtedness, whether repayment depended on the success of the business, whether the right to be repaid by the corporation for payments on the guarantee was subordinated to other corporate indebtedness, what the intent of the parties was in creating the guarantee, whether the initial capital of the corporation was adequate, whether outside sources would have extended the corporation a line of credit without the guarantee, whether the corporation repaid the guaranteed loans, and whether the corporation gave the guarantor or the lender any security. In Re Lane, supra; Plantation Patterns, Inc. v. Commissioner, 462 F.2d 712 (5th Cir. 1972), affg. T.C. Memo. 1970-182; Intergraph Corp. & Subs. v. Commissioner, 106 T.C. 312 (1996). The ultimate question is "'was there a genuine intention to create a debt, with a reasonable expectation of repayment, and did that intention comport with the economic reality of creating a debtor-creditor relationship?'" Calumet Industries, Inc. v. Commissioner, 95 T.C. 257, 286 (1990) (quoting Litton Bus. Sys., Inc. v. Commissioner, 62 T.C. 367, 377 (1973)). We see no purpose to be served in analyzing each of the foregoing factors as applied to the situation herein. It isPage: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 Next
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