- 12 - 3. Source of Payments If the source of the debtor's repayment is dependent upon earnings or is from a restricted source, such as a judgment recovery, dividends, or profits, an equity investment is indicated. See Estate of Mixon v. United States, supra at 407; Calumet Indus., Inc. v. Commissioner, 95 T.C. at 287; Dixie Dairies Corp. v. Commissioner, 74 T.C. 476, 495 (1980); Irbco Corp. v. Commissioner, T.C. Memo. 1966-67. In such a case, “the ‘lender’ acts ‘as a classic capital investor hoping to make a profit, not as a creditor expecting to be repaid regardless of the company’s success or failure.’" Calumet Indus., Inc. v. Commissioner, supra at 287-288 (quoting In re Larson, 862 F.2d 112, 117 (7th Cir. 1988)). When circumstances make it impossible to estimate when an advance will be repaid because repayment is contingent upon future profits or repayment is subject to a condition precedent, or where a condition may terminate or suspend the obligation to repay, an equity investment is indicated. See Affiliated Research, Inc. v. United States, 173 Ct. Cl. 338, 351 F.2d 646, 648 (1965); Irbco Corp. v. Commissioner, supra. In this case, repayment of the $200,000 advance and payment of the consulting fee were contingent upon the fortunes of the Corbin project. See Estate of Mixon v. United States, supra at 405; Segel v. Commissioner, 89 T.C. 816, 830 (1987). At the timePage: 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