CMA Consolidated, Inc. & Subsidiaries, Inc. - Page 132

                                       - 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.                                    









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