- 15 - 4. Right To Enforce Payment A definite obligation to repay principal and interest weighs toward debt. See Stinnett’s Pontiac Serv., Inc. v. Commissioner, supra at 639. Repayment that is within the discretion of the parties and not conditioned upon the occurrence of certain events weighs toward equity. See id. Even where there is a basic right to enforce payment, failure to take customary steps to ensure payment–-such as securing the advance or establishing a sinking fund–-weighs toward equity. See In re Lane, 742 F.2d at 1317. As far as the record reveals, Gandy’s had no fixed obligation to repay the two 1993 advances of $25,000 each. With regard to the other five advances, even if we were to assume arguendo that petitioner had a basic right to enforce payment, petitioner made no effort to do so and failed to take customary steps to ensure payment. The advances were unsecured. There is no evidence that any sinking fund was established by which the principal and interest could be paid. In short, the record does not establish that the parties expected Gandy’s to repay the advances. This factor weighs toward equity. 5. Increased Participation in Management An increase in the nominal creditor’s participation in management of the nominal debtor as a result of the advance weighs toward equity. See Stinnett’s Pontiac Serv., Inc. v.Page: Previous 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Next
Last modified: May 25, 2011