Erickson Post Acquisition, Inc. - Page 13

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          have to repay the advance as long as the dealer supply agreement            
          remained in effect.  Respondent contends that the Amoco payment             
          is similar to those at issue in Westpac Pac. Foods v.                       
          Commissioner, T.C. Memo. 2001-175, and Colombo v. Commissioner,             
          T.C. Memo. 1975-162, and, as such, constitutes income when                  
          received in 1996.  We disagree.                                             
               In Westpac Pac. Foods and Colombo, the obligations to repay            
          did not arise unless and until the party receiving the funds                
          breached the agreement to purchase a set amount of products, and            
          the repayment was proportionate to the amount of products not               
          purchased.  In those cases, the obligations had none of the                 
          characteristics of loans but rather more closely resembled                  
          forfeiture penalties for failure to perform under the contract.             
               By comparison, when Amoco made the loan to petitioner,                 
          petitioner had an absolute obligation to repay the entire                   
          $175,000, and that obligation was secured by a mortgage on the              
          60th Street property.  If petitioner had sold the 60th Street               
          property during the first year, Amoco would have been entitled to           
          $175,000 plus interest.  When the first installment of $17,500 in           
          principal (plus interest) was due at the end of the first year,             
          petitioner’s obligation was reduced to $157,500 only because the            
          dealer supply agreement with Amoco remained in full force and               
          effect.  Had petitioner sold the 60th Street property before the            
          end of the second year, Amoco would have been entitled to                   






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