Edward L. Provost and Vicky L. Provost - Page 12




                                       - 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 time           






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