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