Erickson Post Acquisition, Inc. - Page 12

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          transaction as a loan; and (9) whether the borrower was solvent             
          at the time of the loan.  United States v. Uneco, Inc. (In re               
          Uneco, Inc.), 532 F.2d 1204, 1207 (8th Cir. 1976); McFadden v.              
          Commissioner, T.C. Memo. 2002-166; Flood v. Commissioner, T.C.              
          Memo. 2001-39; Mayhew v. Commissioner, T.C. Memo. 1994-310.                 
               On the basis of the evidence in the record, we find that the           
          $175,000 advanced to petitioner constituted a loan and is not               
          taxable income.  Not only was the transaction in form a loan but,           
          under the circumstances of this case, that was also its                     
          substance.                                                                  
               Here, there was a promissory note that called for fixed                
          annual payments of principal and interest to be paid over a 10-             
          year period.  The debt was secured by a mortgage on petitioner’s            
          real property and guaranteed in writing by Mr. Zimmerman.  The              
          mortgage was recorded with the Office of County Recorder,                   
          Washington County, Minnesota, on August 26, 1996.  There were no            
          other mortgages on the property.                                            
               Amoco routinely enforced the collection of a promissory note           
          made by a dealer/borrower if the dealer defaulted on the note.              
          When a dealer abandoned a station, sold the station, or had                 
          significant financial trouble, Amoco took steps to collect the              
          outstanding balance of any loan.                                            
               Respondent argues that petitioner had only a contingent                
          obligation to repay the advance, in that petitioner would not               






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