- 261 - regardless of whether there was a prearranged understanding, Mr. Kersting and program participants never contemplated that the principal obligation on a primary loan would be paid except by a surrender of the stock. In so holding, Judge Goffe found it significant that: (1) No evidence was produced of a primary note ending up in the hands of anyone not associated with Mr. Kersting; (2) primary loans issued during later years included an express notation that they were nonnegotiable and nonassignable; and (3) primary loans were unsecured, with the primary notes failing to list even the purchased stock as collateral. In completing his analysis, Judge Goffe found further support for his holding that the primary loans did not constitute genuine debt by virtue of Mr. Kersting's waltz of primary loan funds underlying the stock subscription plan, the apparent waltz of funds under the stock purchase plan and the leasing corporation plan, and Mr. Kersting's practice of backdating documents relating to the loans. In the alternative, Judge Goffe found that, even assuming that the test case petitioners had established that the primary loans represented genuine debt, the test case petitioners had nevertheless failed to show that they actually paid primary loan interest within the meaning of section 163(a). Specifically, Judge Goffe concluded that the test case petitioners had not paid primary loan interest by virtue of Mr. Kersting's waltz of leverage loan funds (the funds used to pay primary loan interest)Page: Previous 251 252 253 254 255 256 257 258 259 260 261 262 263 264 265 266 267 268 269 270 Next
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