- 16 - value of the going business concern. This is indicative of a financing arrangement, not a lease. The Potential for Profit or Loss A significant factor to be used in determining ownership of property is the extent to which the taxpayer has potential for profit or loss as a result of holding the property. See Frank Lyon Co. v. United States, 435 U.S. at 579; Sun Oil Co. v. Commissioner, 562 F.2d at 268. In this case, the transaction severely limits Guaderrama’s ability to participate in any appreciation in the value of the property. Because of the repurchase option at less than fair market value, it is a virtual certainty that Benavidez will exercise the option and repurchase Severo’s. Thus, any appreciation in value will be realized by Benavidez, not Guaderrama. Furthermore, all rental payments are at a fixed amount, with no allowance for inflation or increases in property value. In addition, the transaction was structured so that profits and losses resulting from the operation of the premises will inure to Benavidez. Benavidez owns the right to operate and use the restaurant however he sees fit, and any profits or losses resulting from the operation of the restaurant belong to Benavidez. Guaderrama, on the other hand, has a fixed rate of return. Regardless of how successful Severo’s is, Guaderrama isPage: 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