- 19 - 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).Page: Previous 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Next
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