- 98 - Commissioner, supra at 287-288 (quoting In re Larson, 862 F.2d 112, 117 (7th Cir. 1988)). Likewise when circumstances make it impossible to estimate when an advance will be repaid because repayment is contingent upon future profits, or repayment is subject to a condition precedent, or where a condition may terminate or suspend the obligation to repay, an equity investment is indicated. Affiliated Research, Inc. v. United States, 173 Ct. Cl. 338, 351 F.2d 646, 648 (1965). At trial, Koehler was questioned about petitioner’s 1995 and 1996 advances to Cap Corp. He indicated that, by causing petitioner to make the advances, Crispin was “rolling the dice” because repayment depended on Cap Corp.’s making sales, especially through CKS, its subsidiary. After the debt conversion, Cap Corp.’s serious financial problems continued and its earnings capacity also dramatically declined because CKS was no longer a source of earnings. Accordingly, as to the source of repayment, this factor favors respondent. 4. The Right To Enforce the Payments The right to enforce the repayment residing in the entity making the advance is indicative of bona fide debt. Estate of Mixon v. United States, 464 F.2d at 405.Page: Previous 88 89 90 91 92 93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 Next
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