- 32 - c. Source of the Payments If the source of the debtor’s repayment is contingent upon earnings or is from a restricted source, such as a judgment recovery, dividends, or profits, an equity investment is indicated. Estate of Mixon v. United States, supra at 405; Calumet Indus., Inc. v. Commissioner, 95 T.C. at 287-288; Dixie Dairies Corp. v. Commissioner, 74 T.C. at 495. In such a case, the lender acts “‘as a classic capital investor hoping to make a profit, not as a creditor expecting to be repaid regardless of the company’s success or failure.’” Calumet Indus., Inc. v. Commissioner, supra at 287-288 (quoting In re Larson, 862 F.2d 112, 117 (7th Cir. 1988)). When circumstances make it impossible to estimate when an advance will be repaid because repayment is contingent upon future profits or repayment is subject to a condition precedent, or where a condition may terminate or suspend the obligation to repay, an equity investment is indicated. Affiliated Research, Inc. v. United States, 173 Ct. Cl. 338, 351 F.2d 646, 648 (1965). Petitioner acknowledges that repayment of the advances was dependent upon G�nther’s earnings. Therefore, the only question is the weight to be given this factor. We conclude that this factor favors respondent’s position and that it is entitled to considerable weight because G�nther had no available source of repayment other than its earnings and, during the years thePage: Previous 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 Next
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