- 13 - 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.Page: Previous 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Next
Last modified: May 25, 2011