Edward L. Provost and Vicky L. Provost - Page 15




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          financial condition or the potential success of the Corbin                  
          project.  See Dixie Dairies Corp. v. Commissioner, supra at 495;            
          Gooding Amusement Co. v. Commissioner, supra at 418-419.6                   
               Petitioner’s right to demand repayment of the advance was              
          limited from its inception.  Petitioner did not intend to demand            
          repayment of the $200,000 advance unless and until the Corbin               
          project was successful.  This factor favors respondent’s                    
          position.                                                                   
          5.   Participation and Management                                           
               If petitioner received a right to participate in the                   
          management of the Corbin project in consideration for the                   
          advance, such participation tends to demonstrate that the advance           
          was not bona fide indebtedness but rather was an equity                     
          investment.  See American Offshore, Inc. v. Commissioner, 97 T.C.           
          at 603.                                                                     
               Prior to the Corbin project, petitioner and Mr. Magness did            
          not have a continuous business relationship; petitioner had                 
          retained Mr. Magness approximately four times over the past 20              
          years to perform framing or construction services.  As a                    
          condition for advancing the money, petitioner insisted he be                
          retained as a consultant on the Corbin project because he “wanted           

               6In addition, the promissory note was not protected by an              
          acceleration clause or sinking fund in the event of default.  See           
          A.R. Lantz Co. v. United States, 424 F.2d 1330, 1334 (9th Cir.              
          1970).                                                                      






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