CMA Consolidated, Inc. & Subsidiaries, Inc. - Page 12

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          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.                                                                 









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