Lauro G. and Gayle W. Guaderrama - Page 14




                                         - 14 -                                          
          purchase, but rather simply a transfer of property to be held as               
          collateral in a financing arrangement.                                         
          Risks and Responsibilities                                                     
               For purposes of determining the tax consequences of the                   
          transaction, another factor we consider is who bears the risks                 
          and burdens of ownership.  Under the arrangement between the two               
          parties, Benavidez is responsible for all taxes, utilities, and                
          insurance and assumed the full burden and cost of keeping the                  
          premises in good condition.  Benavidez is also responsible for                 
          all repairs or any damage to the premises, and Guaderrama is not               
          liable for any damage to persons or property arising from any                  
          cause whatsoever.  Benavidez agreed to indemnify and hold                      
          harmless Guaderrama from any and all claims and liability for                  
          damage to persons or property arising from any cause.  Moreover,               
          diminution of rental payments even in the event of a casualty or               
          total destruction is not allowed.  Thus, inconsistent with                     
          customary leases, this “lease” imposes essentially all of such                 
          burdens, risks, and responsibilities for the property upon                     
          Benavidez.                                                                     
          The Terms of the Payments                                                      
               The rental payment in this transaction is based on the                    
          construction costs of the restaurant plus 15 percent interest.                 
          The inclusion of an interest component is indicative of a                      
          financing arrangement.  See Judson Mills v. Commissioner, 11 T.C.              






Page:  Previous  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  Next

Last modified: May 25, 2011