- 21 - 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. 694Page: 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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