- 40 - 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.Page: Previous 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 Next
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