- 68 - 8. Whether the Recipient of the Advance Is Adequately Capitalized a. Capitalization of Petitioners Inadequate capitalization strongly suggests that an advance is equity if: (a) The debt to equity ratio was initially high, (b) the parties realized that it would likely go higher, and (c) the recipient of the funds used a substantial part of the funds to buy capital assets and to meet expenses needed to begin operations. Estate of Mixon v. United States, supra at 408; United States v. Henderson, 375 F.2d 36, 40 (5th Cir. 1967). Courts generally consider a borrower's debt to equity ratio and other financial data in deciding if it is thinly capitalized. See, e.g., Tyler v. Tomlinson, supra at 848-849. The GSX purchase made petitioners' debt to equity ratio high during the first year in issue which ended August 31, 1986. Petitioners contend that they were not thinly capitalized. They contend that both their and respondent's experts testified that they were not thinly capitalized and that their financial condition was as good as their competitors. We disagree. Petitioners' debt to equity ratio worsened after buying GSX because they continued to receive advances from LIIBV. Petitioners used most of the advances from LIIBV to pay capital expenses such as to acquire more businesses. Theresa Poppei (Poppei), petitioners' expert, and David N. Fuller (Fuller), respondent's expert, testified aboutPage: Previous 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 Next
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