-31- Commissioner, 404 F.2d 119, 122 (6th Cir. 1968) (“Established authority holds that the intention of the parties is the controlling factor in determining whether or not advances should be termed loans.”), affg. T.C. Memo. 1967-102; cf. Recklitis v. Commissioner, 91 T.C. 874, 905 (1988). The Court of Appeals for the Sixth Circuit, to which an appeal of this case most likely lies, refers primarily to eleven factors in distinguishing debt from equity. See Roth Steel Tube Co. v. Commissioner, supra at 630. These factors are: (1) The name given to an instrument underlying a transfer of funds; (2) the presence or absence of a fixed maturity date and a schedule of payments; (3) the presence or absence of a fixed interest rate and actual interest payments; (4) the source of repayment; (5) the adequacy or inadequacy of capitalization; (6) the identity of interest between creditors and equity holders; (7) the security for repayment; (8) the transferee’s ability to obtain financing from outside lending institutions; (9) the extent to which repayment was subordinated to the claims of outside creditors; (10) the extent to which transferred funds were used to acquire capital assets; and (11) the presence or absence of a sinking fund to provide repayment. Id. No one factor is controlling, and courts must consider the particular circumstances of each case. Id.Page: Previous 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 Next
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