Jerry and Patricia A. Dixon, et al - Page 188




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          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)           

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