Karns Prime & Fancy Food, Ltd. - Page 29

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          493 U.S. at 209, 212; Herbel v. Commissioner, supra.                        
               Based upon our examination of the entire record before us,             
          we find that the $1.5 million at issue does not constitute a                
          loan.  On that record, we further find that that amount is                  
          includable in petitioner’s gross income for the year at issue.              
               We have considered all of the contentions and arguments of             
          the parties that are not discussed herein, and we find them to be           
          without merit, irrelevant, and/or moot.                                     
               To reflect the foregoing,                                              

                                             Decision will be entered                 
                                        for respondent.                               

          commencement of a bankruptcy proceeding by Super Rite merely                
          would have granted petitioner the option of canceling the April             
          16, 1999 supply agreement.  Thus, it was within the control of              
          petitioner, and not Super Rite, to cancel that supply agreement             
          in the event that Super Rite were to commence a bankruptcy                  

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