Brazoria County Stewart Food Markets, Inc. - Page 13




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               While Estate of Mixon provides a framework for analysis,               
          great flexibility in its application is permitted.  The factors             
          are not of equal importance, and no single factor is controlling.           
          See Dillin v. United States, 433 F.2d 1097, 1100 (5th Cir. 1970).           
          The object of the inquiry is not to count factors, but to                   
          evaluate them.5  Tyler v. Tomlinson, 414 F.2d 844, 848 (5th Cir.            
          1969).  The facts and circumstances of each case must be                    
          considered, and no single factor is considered determinative.               
          See John Kelly Co. v. Commissioner, 326 U.S. 521, 530 (1946);               
          Segel v. Commissioner, 89 T.C. 816, 827 (1987).  “The various               
          factors * * * are only aids in answering the ultimate question              
          whether the investment, analyzed in terms of its economic                   
          reality, constitutes risk capital entirely subject to the                   
          fortunes of the corporate venture or represents a strict debtor-            
          creditor relationship.”  Fin Hay Realty Co. v. United States, 398           
          F.2d 694, 697 (3d Cir. 1968).                                               

               4(...continued)                                                        
          the parties; (8) the debtor’s capitalization and use of the                 
          funds; (9) the identity of interest between creditor and                    
          stockholder; (10) whether interest was paid; (11) the ability of            
          the corporation to obtain loans from outside lending                        
          institutions; (12) the extent to which the advance was used to              
          acquire capital assets; and (13) the failure of the debtor to               
          repay on the due date or to seek a postponement.  See Estate of             
          Mixon v. United States, 464 F.2d 394, 402 (5th Cir. 1972).                  
               5 In this case we have considered all of the factors set               
          forth in Estate of Mixon.  Only certain of the factors, however,            
          are germane to the factual scenario presented in the record.  We,           
          accordingly, analyze those factors that are significant to the              
          evaluation of whether petitioner’s advances were debt or equity.            





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