Cerand & Company, Inc. - Page 2




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          2001) (Cerand II).  In T.C. Memo. 1998-423 (Cerand I), we held              
          that the advances petitioner made to sister                                 
          corporations were equity and not debt as claimed by petitioner.             
          In Cerand II, the Court of Appeals held:                                    
                    In the present case, we hold that the [Tax Court]                 
               abused its discretion in assessing the evidence.  The                  
               critical flaw in the [Tax Court’s] analysis is its                     
               failure, despite the taxpayer having pressed the point,                
               to consider * * * [petitioner’s] contemporaneous                       
               treatment of sums received from its sister corporations                
               as in part the payment of “interest,” taxable as income                
               to * * * [petitioner].  Over a period of several years,                
               * * * [petitioner] received $414,220 from the three                    
               [sister] corporations, of which it booked more than                    
               $175,000 as interest income.  Even though * * *                        
               [petitioner] had taxable income in only two of the                     
               years in question (1986 and 1987), treatment of the                    
               repayments as income in other years reduced the amount                 
               of net operating loss * * * [petitioner] could carry                   
               forward into years when it had taxable income.                         
                    Although the [Tax Court] abused its discretion by                 
               omitting from its analysis a highly significant bit of                 
               evidence, we cannot say that, had the [Court] properly                 
               weighed this evidence, it necessarily would have                       
               reached a different conclusion, because we do not know                 
               what weight it assigned to the other evidence.                         
               Therefore, we remand this case for the [Tax Court] to                  
               weigh all the evidence in the first instance.                          
                    We also note that the [Tax Court] placed                          
               considerable weight upon the lack of documentation                     
               indicating that the transfers of funds from * * *                      
               [petitioner] to its sister corporations were loans.                    
               Because there were no documents recording the transfers                
               there necessarily were no stated maturity dates, no                    
               repayment schedules, and no set interest rates.  As the                
               Seventh Circuit recently observed in similar                           
               circumstances, “it is hazardous to say * * * that an                   
               investment must be equity because it is not documented                 
               as debt; lack of documentation does not help us                        
               choose.”  J & W Fence Supply Co. v. United States, 230                 
               F.3d 896, 898 (2000). * * * [Petitioner] does not raise                






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