Olde Raleigh Realty Corporation - Page 10




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          during the years in issue, an oral agreement existed between                
          petitioner and Mr. Henderson for him to advance funds to the                
          corporation and for the corporation to pay his personal expenses.           
          Accordingly, we hold that there was no oral agreement between               
          petitioner and Mr. Henderson and that petitioner has failed to              
          show that amounts withdrawn from the corporation to pay Mr.                 
          Henderson’s personal expenses were pursuant to a “trust”                    
          arrangement.                                                                
               Petitioner argues in the alternative that the corporation’s            
          payment of Mr. Henderson’s personal expenses represented                    
          repayments of loans made between the two parties.  Respondent               
          argues that any funds advanced by Mr. Henderson were                        
          contributions to capital and any payment of Mr. Henderson’s                 
          personal expenses constitutes the payment of wages to an                    
          employee.                                                                   
               In resolving the question of whether a payment is debt or              
          equity for Federal tax purposes, each case must be decided on its           
          own facts.  Calumet Indus., Inc. v. Commissioner, 95 T.C. 257,              
          285 (1990).                                                                 
               Courts have identified and considered various factors in               
          determining whether a payment is debt or equity.  Some of the               
          factors considered are:  The names given to the certificates                
          evidencing the indebtedness, presence or absence of a fixed                 
          maturity date, source of payments, right to enforce payments,               






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Last modified: May 25, 2011