- 106 - that a purported lender expects to be paid out of future earnings or through an increased market value of its equity interest. Id. at 605 (citing Curry v. United States, 396 F.2d 630, 634 (5th Cir. 1968)). Although the Cap Corp. promissory notes provided that accruals of interest be added to the outstanding balance, Cap Corp. did not make and was not financially capable of making interest payments after August 1995. Payment of accrued interest depended entirely on profits that Cap Corp. did not have and was not likely to earn in the future. This factor favors respondent. 11. Ability To Obtain Loans From Outside Lending Institutions “[T]he touchstone of economic reality is whether an outside lender would have made the payments in the same form and on the same terms.” Segel v. Commissioner, 89 T.C. 816, 828 (1987) (citing Scriptomatic, Inc. v. United States, 555 F.2d 364, 367 (3d Cir. 1977)). A corporation’s ability to borrow from outside lending institutions gives the transaction the appearance of a bona fide debt and indicates that the purported creditor acted in the same manner toward the corporation as ordinary reasonable creditors would have acted. Hardman v. United States, supra (citing Estate of Mixon v. United States, supra at 410).Page: Previous 96 97 98 99 100 101 102 103 104 105 106 107 108 109 110 111 112 113 114 115 Next
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