-41- Commissioner, supra at 640; Calumet Indus., Inc. v. Commissioner, 95 T.C. 257, 287 (1990). We do not believe that a creditor dealing at arm’s length would have made the transfers to ALSL under the terms that petitioners allege were entered into between ALSL and HEI. In fact, ALD discussed borrowing funds from a commercial lender; i.e., Provident. Although Provident did not lend any funds to ALD, the terms of the proposed financing arrangement were different in many regards from those contained in the ALSL note. First, Provident would have required that HEI be a co-maker of the note. Second, Provident would have required that HEI agree to certain financial covenants such as the maintenance of a stated debt to equity ratio and a stated minimum net worth. Third, Provident would have required the borrower to provide security, collateral, and earnest money and to pay accrued interest and principal monthly. Fourth, Provident would have required that ALD have in the first phase of construction at least 45 firm contracts to purchase condominium units with a total gross sale price of at least $10.8 million and total initial earnest money deposits of at least $1.62 million. Fifth, Provident would have required that any earnest money from the sales be deposited with Provident. None of these requirements, or anything like them, was contained in the financing arrangement between ALSL and HEI.Page: Previous 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 Next
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