- 101 - 1997 would be used to pay Cap Corp.’s third-party creditors, and (3) it was highly unlikely that Cap Corp. would be able to repay petitioner by the November 30, 1997, maturity date. This factor favors respondent. 7. Intent of the Parties “[T]he inquiry of a court in resolving the debt-equity issue is primarily directed at ascertaining the intent of the parties”. A.R. Lantz Co. v. United States, 424 F.2d at 1333 (citing Taft v. Commissioner, 314 F.2d 620 (9th Cir. 1963), affg. in part and revg. in part T.C. Memo. 1961-230). The objective and subjective expressions of intent, as well as the other 10 enumerated factors, must be examined. Id. at 1333-1334. The resolution of a debt versus equity question involves consideration of the substance and reality and not merely the form. Form used as a subterfuge to shield the real essence of a transaction should not control. Id. at 1334. Cap Corp. and petitioner treated the advances in controversy as debt in that Cap Corp. issued petitioner the January 1, 1995, and December 1, 1996, promissory notes documenting the advances and accrued interest. The advances were recorded as debt by Cap Corp. and assets by petitioner on their respective financial statements.Page: Previous 91 92 93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 108 109 110 Next
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