Ronald B. and Annette C. Talmage - Page 60




                                        - 60 -                                        
              The promissory note set forth a fixed schedule for repayment            
         with a default provision requiring immediate payment of both                 
         principal and interest.  However, the record indicates petitioner            
         did not make any payments to NCPL and NCPL never attempted to                
         collect the amount owing after each default.  Petitioner testified           
         that NCPL did not require him to comply with any fixed terms or              
         require him to make any payments until the characterization of the           
         advances was determined.                                                     
              Furthermore, petitioner produced no documentation showing               
         that a fixed schedule was established to repay the $249,193 TPPL             
         transferred to SSI in 1998 for the development of the Rivercliff             
         property or the total of $92,250 NCPL transferred to petitioner              
         for the Rivercliff property’s farm operating expenses in 1998,               
         2001, and 2002.                                                              
              This factor indicates the parties did not intend to establish           
         a debtor-creditor relationship at the time the funds were                    
         advanced.                                                                    
                   4.   Whether the Borrower Had a Reasonable Prospect of             
                        Repaying the Loan and Whether the Lender Had                  
                        Sufficient Funds To Advance the Loan                          
              This factor is best determined by looking to whether there              
         was “a reasonable expectation of repayment in light of the                   
         economic realities of the situation” at the time the funds were              
         advanced.  Fisher v. Commissioner, supra at 910.  A reasonable               
         prospect of repayment at the time the funds were advanced                    







Page:  Previous  53  54  55  56  57  58  59  60  61  62  63  64  65  66  67  Next 

Last modified: March 27, 2008