Edward L. Provost and Vicky L. Provost - Page 13




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          petitioner made the advance, both petitioner and Mr. Magness                
          understood that Mr. Magness had no way of repaying the money                
          unless the Corbin properties sold.  Further, they agreed the                
          payments would be made from the sales proceeds of the Corbin                
          properties.                                                                 
               Petitioner contends that his agreement with Mr. Magness did            
          not "turn the loan into an investment" because he "was to be paid           
          when the project sold, not if it sold".  Petitioner also stresses           
          that Mr. Magness’ failure to sell the Corbin properties was due             
          to California’s failing economy and real estate market.  Although           
          we agree with petitioner that it is difficult to predict how the            
          real estate market will behave in the future, a reasonably                  
          prudent person can foresee that the project may not be                      
          successful, and the properties may not sell.  Petitioner claims             
          he has sold spec houses in the past for a profit; thus,                     
          petitioner either knew or should have known of the risks involved           
          in the Corbin project when he advanced Mr. Magness the money.               
          Petitioner knew at the time he made the advance to Mr. Magness              
          that repayment was impossible unless the Corbin project sold.               
          Under the circumstances, petitioner acted more like a "classic              
          capital investor" than a true creditor.  Calumet Indus., Inc. v.            
          Commissioner, supra at 288.  This factor favors respondent’s                
          position.                                                                   








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