Philip A. Sellers - Page 19




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               This factor is neutral, and we give it no weight.13                    
               10.  Source of Interest Payments                                       
               “[A] true lender is concerned with interest.”  Curry v.                
          United States, 396 F.2d 630, 634 (5th Cir. 1968).  Failure of the           
          putative lender to insist on interest payments suggests that he             
          is instead interested in the future earnings of the corporation             
          or increased market value of his ownership interest, thereby                
          indicating equity contributions.  See Stinnett’s Pontiac Serv.,             
          Inc. v. Commissioner, supra at 640.  Petitioner never demanded,             
          and Gandy’s never made, interest payments on the advances.                  
               This factor weighs toward equity.                                      
               11.  Ability To Obtain Funds From Outside Lenders                      
               If a party receiving an advance can borrow funds from                  
          another lender in an arm’s-length transaction on similar terms,             
          the advance may appear to be debt.  See Electronic Modules Corp.            
          v. United States, 695 F.2d 1367, 1370 (Fed. Cir. 1982); Estate of           
          Mixon v. United States, supra at 410.  Petitioner alleges to have           
          made completely unsecured loans to Gandy’s at a time when all its           
          assets were completely leveraged and when it was deeply                     



               13  To the extent that petitioner, as majority shareholder             
          and father of the sole minority shareholder, controlled the                 
          corporations that held ownership interests in Gandy’s (and there            
          is no evidence to the contrary), we could also conclude that                
          there was identity of interest between petitioner and the other             
          shareholders–-a factor that would weigh strongly toward treating            
          the advances as equity.  Cf. Plantation Patterns, Inc. v.                   
          Commissioner, 462 F.2d 712, 722 (5th Cir. 1972).                            





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