CMA Consolidated, Inc. & Subsidiaries, Inc. - Page 18

                                       - 107 -                                        
               Cap Corp. would not have been able to obtain similar loans             
          from an outside lending institution.  Petitioner acknowledges               
          that:  (1) Cap Corp. was insolvent from 1995 through 1997 and               
          needed funds from petitioner to pay its operating expenses and              
          those of its subsidiaries, including substantial interest                   
          payments due Cap Corp.’s third-party creditors; (2) Cap Corp.               
          would have failed long before 1999 without the advances in                  
          controversy; and (3) Cap Corp., during 1995 and 1996, lacked                
          tangible assets to serve as security and/or a repayment source              
          for loans.  By October 1996 Crispin and Koehler realized Cap                
          Corp. was bankrupt, with liabilities exceeding assets by several            
          multiples.  Even after the December 2, 1996, debt conversion, Cap           
          Corp.’s insolvency problems continued and its potential earnings            
          base declined dramatically.                                                 
               This factor favors respondent.                                         
          C.  Conclusion and Holdings                                                 
               After considering the above factors, we hold that                      
          petitioner’s advances to Cap Corp. are not to be treated as bona            
          fide debt for tax purposes.  Those advances, instead, constituted           
          equity in Cap Corp.                                                         
               On brief, however, petitioner argues that it is entitled to            
          ordinary deductions irrespective of whether the advances are                
          classified as debt or equity.  Petitioner argues that, under                
          certain circumstances, courts have allowed taxpayers an ordinary            






Page:  Previous  97  98  99  100  101  102  103  104  105  106  107  108  109  110  111  112  113  114  115  116  Next

Last modified: May 25, 2011