Erickson Post Acquisition, Inc. - Page 15

                                       - 15 -                                         
          out by the Supreme Court in Commissioner v. Indianapolis Power &            
          Light Co., 493 U.S. 203, 209 (1990), the borrower frequently has            
          unfettered use of the proceeds of a loan.  The Supreme Court                
          explained that the key to determining whether a taxpayer enjoys             
          “complete dominion” over a given sum is not whether the taxpayer            
          has unconstrained use of the funds during some period, but                  
          whether the taxpayer “has some guarantee that he will be allowed            
          to keep the money.”  Id. at 210.  In evaluating whether a                   
          taxpayer enjoys complete dominion, we look to “the parties’                 
          rights and obligations at the time the payments are made.”  Id.             
          at 211.  Here, petitioner’s dominion over the Amoco payment is              
          far less complete than is ordinarily the case in an                         
          advance-payment situation.  At the time Amoco made the advance,             
          petitioner had no guarantee that it would be allowed to keep any            
          portion of the payment. Highland Farms, Inc. v. Commissioner,               
          106 T.C. 237, 250-252 (1996).                                               
               Respondent asserts that the advance was not a loan because             
          formalities for creating a loan were not followed, the mortgage             
          was subordinated to an unknown debt, and Amoco did not consider             
          petitioner’s financial condition before making the advance.                 
          Specifically, respondent asserts that the fact that Mr.                     
          Zimmerman’s signature on the note does not indicate that he                 
          signed as petitioner’s president means that he signed the note in           
          his individual capacity, making him the borrower.  We disagree.             






Page:  Previous  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  16  17  Next

Last modified: May 25, 2011