Philip A. Sellers - Page 21




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               13.  The Failure of the Debtor To Repay on the Due Date                
               This factor is the most telling of the Mixon factors.  See             
          In re Lane, 742 F.2d at 1317.  Except for a token $5,000                    
          repayment at the end of 1993, Gandy’s repaid none of the                    
          advances, nor did petitioner ever demand repayment.  We conclude            
          that petitioner never intended to compel repayment of the                   
          advances.  Cf. Stinnett’s Pontiac Serv., Inc. v. Commissioner,              
          supra at 640.                                                               
               This factor weighs strongly toward equity.                             
          Conclusion                                                                  
               In light of the foregoing, we conclude and hold that                   
          petitioner’s advances to Gandy’s were capital contributions and             
          not bona fide debt.  Therefore, petitioner may not deduct the               
          advances as bad debts under section 166.                                    
          D.   Characterization of Petitioner’s Losses as Ordinary or                 
               Capital                                                                
               Petitioners argue that even if petitioner’s advances to                
          Gandy’s constituted capital contributions rather than bona fide             
          indebtedness, they are nevertheless entitled to claim ordinary              
          losses under section 165 rather than the capital losses to which            
          respondent has conceded they are entitled, because petitioner was           
          in the business of lending money and because his initial                    
          involvement with Gandy’s came in furtherance of his business                
          rather than as an investment.  In support of their position,                
          petitioners cite W.W. Windle Co. v. Commissioner, 65 T.C. 694               





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