Flint Industries, Inc. and Subsidiaries - Page 40




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          was not likely to have in the future.  On balance, this factor              
          favors respondent’s position.                                               
                    k.  Ability of G�nther To Obtain Funds From                       
                         Outside Lending Institutions                                 
               “[T]he touchstone of economic reality is whether an outside            
          lender would have made the payments in the same form and on the             
          same terms.”  Segel v. Commissioner, 89 T.C. 816, 828 (1987)                
          (citing Scriptomatic, Inc. v. United States, 555 F.2d 364, 367              
          (3d Cir. 1977)); see also Calumet Indus., Inc. v. Commissioner,             
          95 T.C. at 287.                                                             
               The record contains only vague and limited information on              
          G�nther’s financial status before FYE May 31, 1992, and no                  
          evidence tending to prove that G�nther could have obtained                  
          comparable loans from unrelated financial institutions.  The                
          limited evidence regarding G�nther’s financial condition before             
          FYE May 31, 1992, tends to show that G�nther was not in a                   
          position to obtain substantial funding from any financial                   
          institution without meaningful security, guaranties from a third            
          party, and fixed payment terms.  Petitioner’s financial support             
          of G�nther through the mechanism of the intercompany account had            
          none of these characteristics and was far more speculative.  See            
          Fin Hay Realty Co. v. United States, 398 F.2d at 697; Dixie                 
          Dairies Corp. v. Commissioner, 74 T.C. at 497.                              
               This factor favors respondent’s position.                              







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