This matter comes before the Court on the appeal by plaintiff from an order of United States Bankruptcy Judge Hal J. Bonney, Jr., which dismissed plaintiffs' complaint, subordinated the note claims of the plaintiff to the claims of all other creditors and set aside deeds of trust which purported to secure the note claims. Appellant contends that the Bankruptcy Judge's findings of fact and conclusions of law were completely erroneous and that appellant's claims against the bankrupt should be reinstated. Jurisdiction of this Court is based on 28 U.S.C. § 1334; Bankruptcy Act §§ 38, 39(c), 11 U.S.C. §§ 66, 67(c); and Bankruptcy Rule 801.

The record below discloses that the bankrupt, Fett Roofing and Sheet Metal Co., Inc., was owned and run prior to 1965 by plaintiff herein, Donald M. Fett, Sr., as a sole proprietorship. During 1965, Mr. Fett incorporated his business, transferring to the new corporation assets worth $4,914.85 for which he received 25 shares of stock. The stated capital of the corporation was never increased during the course of the corporation's existence. Mr. Fett was the sole stockholder and also the president of the corporation. The roofing business continued to be run completely by Mr. Fett much as it had been prior to its incorporation. In short, Fett Roofing was a classic “one-man” corporation. Over the years, plaintiff advanced money to his business as the need arose. Three of these transactions made in 1974, 1975 and 1976 involved the transfer to the corporation of $7,500, $40,000 and $30,000, respectively. In each instance plaintiff borrowed from the American National Bank, made the funds available to his business and took back demand promissory notes. On April 6, 1976, at a time his business had become insolvent, plaintiff recorded three deeds of trust intended to secure these notes with the realty, inventory, equipment and receivables of Fett Roofing and Sheet Metal Co., Inc. The deeds were backdated to indicate the dates on which the money had actually been borrowed. On November 8, 1976, an involuntary petition in bankruptcy was filed.

After a trial in which both sides presented considerable evidence and the plaintiff personally testified regarding his claim, Judge Bonney made the following findings of fact.

1. The bankrupt was undercapitalized at its inception in 1965, and remained undercapitalized throughout its existence. The capital necessary for the operation and continuation of its business was provided by the complainant in the form of so-called loans on an “as-needed” basis. Promissory notes, including the three involved herein, were given to the complainant in the course of such transactions.

2. The three deeds of trust which purport to secure the said notes were all back-dated to create the impression that they were executed contemporaneously with the advance of funds and the giving of the notes; all three were in fact executed and recorded during the first week of April 1976, when the notes were, by their terms, past due.

3. The purpose of the deeds of trust was to delay, hinder, and defraud the creditors of the bankrupt, and to give the complainant a preference over them, in the event a liquidation of assets became necessary.

4. Complainant was in sole control of the affairs of the bankrupt, and was its sole stockholder. His interests were at all times identical to and indistinguishable from that of the bankrupt; he was the alter ego of the bankrupt.

5. At the time these three deeds of trust were executed and recorded, the bankrupt was, and for several months *729 had been, unable to meet its obligations as they came due in the ordinary course of business. Many of the debts listed in the schedules filed by the bankrupt were incurred and delinquent prior to April 1976.

6. Complainant knew that his corporation was insolvent no later than February 1976.

Based on these findings, Judge Bonney concluded that the advances made by plaintiff to his corporation were actually contributions to capital, not loans, and that claims based on them therefore should be subordinated to those of all the other creditors of the bankrupt. The Judge further found that even if the transfers had been bona fide loans, the deeds of trust intended to secure them would have been null and void as having been given with actual intent to delay, hinder and defraud creditors in violation of § 67d(2)(d) of the Bankruptcy Act, 11 U.S.C. § 107(d)(2)(d). In addition, Judge Bonney determined that such loans were given in fraud of creditors under state law and therefore were voidable under § 70(e) of the Bankruptcy Act, 11 U.S.C. § 110(e).

Because we have concluded that the Bankruptcy Judge was correct in his determination that the plaintiff's transfers of money to his corporation were capital contributions and not loans we do not consider the soundness of the last two legal findings.

[1] At the outset the Court notes that a Bankruptcy Judge's findings of fact will be accepted unless “clearly erroneous.” Bankruptcy Rule 810. In examining the entire record, the opinion and order of the Judge below and the briefs and oral argument of the parties, the Court is satisfied that substantial evidence supports the findings of fact of the Bankruptcy Judge and as they are not clearly in error, they will not be disturbed. In re Madelaine, 164 F.2d 419, 420 (2d Cir. 1947).

[2] Although the Court is not bound by the Bankruptcy Judge's conclusions of law and is free to make its own legal deductions, East Coast Electronics, Inc. v. Walter E. Heller & Co., 355 F.2d 923 (5th Cir. 1966), an analysis of the particular facts of this case and the relevant authorities clearly shows that the determination that plaintiff made capital contributions to the bankrupt rather than loans is legally sound.

[3] [4] A director, officer, majority shareholder, relatives thereof or any other person in a fiduciary relation with a corporation can lawfully make a secured loan to the corporate beneficiary. Faucette v. Van Dolson, 397 F.2d 287 (4th Cir.), cert. denied, 393 U.S. 938, 89 S.Ct. 301, 21 L.Ed.2d 274 (1968). However, when challenged in court a fiduciary's transaction with the corporation will be subjected to “rigorous scrutiny” and the burden will be on him “. . . not only to prove the good faith of the transaction but also to show its inherent fairness from the viewpoint of the corporation and those interested therein.” Pepper v. Litton, 308 U.S. 295, 60 S.Ct. 238, 84 L.Ed. 281 (1939); Geddes v. Anaconda Copper Mining Co., 254 U.S. 590, 599, 41 S.Ct. 209, 65 L.Ed. 425 (1921). See also, Twin-Lick Oil Co. v. Marbury, 91 U.S. 587, 23 L.Ed. 328 (1875).

[5] Where a director or majority shareholder asserts a claim against his own corporation, a bankruptcy court, sitting as a court of equity, will disregard the outward appearances of the transaction and determine its actual character and effect.

Similar results have properly been reached in ordinary bankruptcy proceedings. Thus, salary claims of officers, directors and stockholders in the bankruptcy of “one-man” or family corporations have been disallowed or subordinated where the courts have been satisfied that allowance of the claims would not be fair or equitable to other creditors. And that result may be reached . . . where on the facts the bankrupt has been used merely as a corporate pocket of the dominant stockholder, who, with disregard of the substance or form of corporate management, has treated its affairs as his own. And so-called loans or advances by the dominant or controlling stockholder *730 will be subordinated to claims of other creditors and thus treated in effect as capital contributions by the stockholder not only in the foregoing types of situations but also where the paid-in capital is purely nominal, the capital necessary for the scope and magnitude of the operation of the company being furnished by the stockholder as a loan.

Pepper v. Litton, supra 308 U.S. at 308-310, 60 S.Ct. at 246.

[6] [7] The record on this appeal reveals the bankrupt to have been a large construction contractor requiring ample amounts of capital. As indicated above, the corporation was capitalized at slightly under $5,000 when it was created in 1965. No increment to this initial amount was ever formally made. According to the schedule filed with the Bankruptcy Judge, the bankrupt's debt to secured creditors alone stood at $413,000. This is a debt-to-equity ratio of over 80 to 1. While this fact by itself will not serve to convert what is otherwise a bona fide loan into a contribution to capital, it does cast serious doubt on the advances by a person in plaintiff's special situation being considered debt rather than equity. The fact that no evidence was adduced by plaintiff to show that the “borrowings” in question were formally authorized by the corporation or that interest was ever paid on them, coupled with the undisputed day-in-and-day-out control over corporate affairs wielded by plaintiff, as president and sole stockholder leave little doubt that plaintiff, ignoring corporate formalities, was infusing new capital into his business and avoiding such necessities as charter amendment or the issuance of new stock. The record discloses that the funds transferred to the corporations were used to finance the acquisition of equipment and material necessary to the functioning of the business. Although one of the advances was used to pay a bona fide tax liability, this does not affect its character as a capital contribution under the particular circumstances of this case. In re Trimble Co., 479 F.2d 103, 115 (3d Cir. 1973). The fact that plaintiff at various times characterized these advances as “re-capitalization” can only reinforce a conclusion which consideration of the entire record makes inevitable.

The Courts of this circuit have had no reluctance to pierce through surface appearances in these matters and distinguish contributions to capital from genuine loans. In Braddy v. Randolph, 352 F.2d 80 (4th Cir. 1965), a case with some striking similarities to the present dispute, the plaintiff, president, director and a principal stockholder of a bankrupt corporation, filed four claims based on four notes secured by deeds of trust. In affirming the rejection of these claims, the Court of Appeals stated:

To finance this volume and to keep the business going even though operating at a loss, the Bankrupt borrowed heavily and constantly from the four officers and the North Carolina National Bank (hereinafter Bank). The money which officers, Braddy, Zeliff, Craft and Foster, “loaned” the Bankrupt was normally acquired from the Bank by use of their personal credit and personal assets. Based on the volume of business and the fact that the Bankrupt began borrowing from the officers and the Bank at the outset of operations, we think the referee and court could reasonably conclude that these “loans” were necessitated by the initial insufficiency of the Bankrupt's equity capital and that the “loans” made by the officers were, in effect, contributions to capital. Securities & Exchange Com'n v. Liberty Baking Corp., 240 F.2d 511, 515 (2 Cir. 1957). Rather than invest more capital the officers and stockholders, by the use of the borrowed funds, substantially shifted and evaded the ordinary financial risks connected with this type of business enterprise and, at the same time, permitted the corporation to remain in a constant state of or in imminent danger of insolvency.

Similarly in L & M Realty Corp. v. Leo, 249 F.2d 668 (4th Cir. 1957), the Court of Appeals subordinated the claim of a principal shareholder, noting:

While the amounts thus advanced were treated by the stockholders as loans to *731 the corporation and it was not contemplated that stock was to be issued in payment of them, it is clear that they were not loans in the ordinary sense and were not intended to be paid in ordinary course, as were the claims of other creditors. The corporation was not adequately capitalized, the advancements were made shortly after it was organized and no steps were ever taken looking to their repayment. They were made in approximately equal amounts by the two stockholders owning the corporation, who actually paid other creditors in priority to themselves year after year, no interest was ever paid on them and the evidence is that the money was advanced as loans rather than as subscription to stock in the thought that this would be helpful for income tax purposes. In such situation, while the loans are not to be treated as investments in stock, it is clear that they were capital contributions to a corporation inadequately capitalized and that, having been made by the two stockholders, who completely owned and controlled the corporation, they should be subordinated to the claims of other creditors.

See also, International Telephone and Telegraph Corp. v. Holton, 247 F.2d 178 (4th Cir. 1957); In re Sterling House, Inc., 356 F.Supp. 1113 (W.D.Va.1973). Cf. Freeman v. Swink, 261 F.2d 84 (4th Cir. 1958).

[8] Although the advances contested here were made well after the corporation was created, there is evidence in the record that plaintiff had “ loaned” the bankrupt money over the years and that the transfers here in issue were only the latest in a series of contributions made necessary by the corporation's grossly inadequate capitalization. Since these three transactions were “part of a plan of permanent personal financing,” the fact that they did not occur at the outset of corporate existence is not crucial and the claims based on them are properly subordinated to those of other creditors. Boyum v. Johnson, 127 F.2d 491, 494 (8th Cir. 1942); Duberstein v. Werner, 256 F.Supp. 515 (E.D.N.Y.1966).

[9] Since the transfers made by plaintiff to the bankrupt were, in contemplation of law, capital contributions the deeds of trust purporting to secure these advances were properly set aside since there was in fact “no debt to be secured.” Arnold v. Phillips, 117 F.2d 497, 501 (5th Cir. 1941).

[10] [11] [12] [13] As the cases make clear, no one fact will result in the determination that putative loans are actually contributions to capital. The Court is guided by equitable principles that look to the result of the transaction as well as to the formal indicia of its character. A person in the special position of the plaintiff “. . . cannot by the use of the corporate device avail himself of the privileges normally permitted outsiders in a race of creditors.” Pepper v. Litton, supra, 308 U.S. at 311, 60 S.Ct. at 247. It is not necessary that fraud, deceit or calculated breach of trust be shown. Where, as here, a corporate insider, indeed the corporate alter ego has so arranged his dealings with his corporate principal that he achieves an unfair advantage over outside creditors dealing at arms length, the Court will subordinate his claim to theirs. Pepper v. Litton, supra; In re Trimble Co., supra; Costello v. Fazio, 256 F.2d 903 (9th Cir. 1958); Goldie v. Cox, 130 F.2d 695 (8th Cir. 1942); Boyum v. Johnson, supra; Arnold v. Phillips, supra; In re Dean and Jean Fashions, Inc., 329 F.Supp. 663 (W.D.Okl.1971); In re Regency, 96 F.Supp. 535 (D.N.J.1951); 3 A Collier on Bankruptcy § 63.06 at 1797 (14th ed. 1975).

In summary, the Court has accepted the Bankruptcy Judge's findings of fact pertaining to the nature of the advances made by plaintiff and the nature of the corporation as plaintiff's alter ego, as supported by substantial evidence and not clearly erroneous. Further, it finds ample support in the facts and in the relevant authorities for treating plaintiff's advances to the bankrupt as contributions to capital and not as loans.

For the foregoing reasons, the Order appealed from is AFFIRMED.

 案情简介
原告Donald M. Fett, Sr. 拥有并经营Fett Roofling & Sheet Metal Co., Inc.（下称Fett Roofling或公司），是于1965年Fett先生将独资企业改制成公司的。Fett先生向新公司转让了价值$4914.85资产，换得公司股份25股。多年来，原告Fett先生不断地在公司需要资金的时候向公司投入。在1974、1975、1976年有三笔对公司的资金投入，金额分别为7，500美元、40，000美元和30，000美元。每次向公司投入资金，原告都首先以个人名义向美洲国家银行贷款，然后再以个人名义将资金贷给公司，由公司向他开具公司本票。1976年4月，公司已经陷于资不抵债的境况，原告使公司作了三份担保合同，以公司的不动产、库存、机器设备以及应收帐款作为对其个人债权的担保。在公司不能清偿对他的债务时，Fett先生行使了对公司财产的抵押权，从而对公司财产进行了拍卖。公司破产管理人对Fett先生行使的抵押权和债权的有效性提出异议。

案件审理：本案首先因为申请破产而进入破产程序，由于原告对破产法官宣告其债权担保无效，债权居于其他外部债权人之后而上诉至联邦上诉法院。此为上诉法院的判决。

Clarke, District Judge.发表了本判词：

本案是因为原告不服美国联邦破产法官Hal J. Bonney, Jr.的判决命令上诉至本法庭的。原审破产法官驳回了原告的起诉，将原告的债权降为次于其他所有债权人债权之后的次等债权，并宣为对原告债权担保的信托合同无效。上诉人称破产法官对事实的发现和法律的适用是完全错误的，上诉人对于破产企业的请求权应当予以支持。

事实
卷宗表明破产企业Fett Roofling & Sheet Metal Co., Inc.（下称Fett Roofling或公司），在1965年之前是作为独资企业由原告Donald M. Fett, Sr. 所拥有并经营的。1965年Fett先生将独资企业改制成公司，向新公司转让了价值$4914.85资产，换得公司股份25股。公司的资本从成立时起一直没有增加。Fett先生是公司唯一的股东也是公司的总裁。屋顶的业务与公司成立前一样完全被Fett先生经营。从之，Fett Roofling公司是典型的“一人公司”。多年来，原告不断地在公司需要资金的时候向公司投入。在1974、1975、1976年有三笔对公司的资金投入，金额分别为7，500美元、40，000美元和30，000美元。每次向公司投入资金，原告都首先以个人名义向美洲国家银行贷款，然后再以个人名义将资金贷给公司，由公司向他开具公司本票。1976年4月，公司已经陷于资不抵债的境况，原告使公司作了三份担保合同，以公司的不动产、库存、机器设备以及应收帐款作为对其个人债权的担保。然后，将担保合同的日期倒签为Fett先生向公司实际贷款的时间。1976年9月8日，债权人对公司提起的破产请求诉至法院。

庭审中，双方都出具了相当的证据，原告个人证明了自己的诉讼请求，法官Bonney发现了下列事实：
1. 破产企业在1965年成立时即出资不足，并且在公司存续期间一直处于资本不足状态。对于公司业务经营和存续所必需的资本需求，原告一直以所谓的贷款形式在公司需要的时候予以提供。原告所持有的公司本票及其担保合同就是提供这些贷款时得到的。
2. 三份以担保债权为目的的信托合同是为了使人相信它们与资金投入和本票开具同时进行的而倒签的。三份信托合同都是在1976年4月的第一周签的，而在那个时候三张本票依据它们本身的条款清偿期均已届满。
3. 这三份信托合同是为了延迟、阻碍对其他债权人的清偿，欺骗破产企业的其他债权人，使原告获得清算时优先于其他债权人的受偿权。
4. 原告对破产企业的事务进行完全的控制，是破产企业唯一的股东。他的利益与破产企业的利益是完全一直的，无法将他的利益与破产企业的利益区分。他与破产企业是同一的。
5. 在这三份信托担保合同制作和记录时，破产企业不能清偿一般业务的到期应付债款已经有几个月了。从破产企业的登记来看，很多债务都是在1976年4月以前发生并拖欠未付的。
6. 原告知道他的公司不会晚于1976年2月破产。

基于这些事实的发现，法官Bonney作出结论，原告投入公司的这些资金实际上是资本而不是贷款。所以原告对这些资金的主张理应次于破产企业其他的所有的债权。该法官进一步发现，即使资金是本着善意投入的，是善意的贷款，为这些债务进行担保的信托合同也是无效的。因为这些信托合同制作的意图是为了延迟、阻碍对其他债权人的清偿，欺骗破产企业的其他债权人，从而违反了《破产法》Section 67d(2)(d)。另外，Bonney法官还认定，这这样的贷款依州法构成了对其他债权人的欺诈，因此依《破产法》Section70（e）是可撤销。

因为我们已经作出了结论，破产法官所作出的原告对于公司的资金投入是公司资本而不是贷款的认定是正确的，所以我们对后一个问题不再讨论。

事实
董事、经理人、公司的主要股东以及任何对公司负有信义义务的人，都可以合法地向公司担保贷款。这在Faucett 诉 Van Dolson 一案中有很好的说明。但是，如果有人对他们与公司的交易提出异议，法庭将对交易进行“严格的审查”。那么，举证的责任将由他们承担，他们“不仅要证明交易是本着诚实信用原则进行的，而且要证明交易对公司的利益和那些有利害关系的交易者都是内在公平的。”

“当公司的董事或主要股东对其自己的公司主张权利时，破产法院作为衡平法院，将不考虑这些交易的表面形式，而要决定交易的实际本质及其后果。在Pepper诉Litton一案法官说：“普通破产程序可以达到相同的结果。所以，有关董事、经理和一人公司股东对破产企业工资的主张，或家族企业破产时股东对公司要求支付工资的主张，当法官认为支持这些主张对其他债权人不公平时，都不被允许或者使其居于次等。这样的结论是可能的，如果破产企业仅仅被视为控制股东的以公司的形式存在的钱包，控制股东忽视公司经营的实质和形式，将公司事务视为自己的事务。那么主要股东或控制股东的所谓贷款或资金投入，就将被降为次于其他债权人债权的权利请求，实际上作为资本对待。这样对待股东所谓债权的情况也发生在公司的资本投入只是象征性的，公司经营所必需的资本被股东以贷款的形式投入。”

本上诉案的卷宗表明，破产企业是一个大的建筑承包商，需要充分的资本投入。正如上文指出的，公司在1965年成立时只有不到5000美元的资本。从那时起，资本一直没有增加。根据破产法官的统计，仅破产企业的担保债务就达413，000美元。这个数字显示公司的负债与资本的比例是80比1。当然这一事实本身还不能认定一项善意的贷款应当被作为资本对待，但是考虑到原告在公司所除的特殊地位，原告个人对公司的贷款使人产生重大疑问，它是资本而不是贷款。原告未能举证证明公司向他借款是经过了正式授权，或者公司曾经向他支付过利息，再加上考虑原告对公司日常事务的控制和影响和对公司经营形式的忽视，作为公司唯一的股东和总裁，毫无疑问，原告为了避免所必须的修改公司章程或发行新股，原告向他的公司注入了新的资本。卷宗表面，原告对公司的资金投入被用于购置公司运营所必须的设备和材料。尽管其中的一项资金投入被用于善意地支付公司应付的税款，这并不影响在本案特定情况下资金投入的资本性质。原告多次称这些资金投入是资本重组的事实，只是使人对案件全部事实的加以考虑不可避免而已。

本巡回法院不会怠于在一定条件下刺破所谓真正贷款的表面而将其认定为公司资本。在Braddy 诉 Randolph 一案中，该案与本案争议惊人的相似，原告是破产公司的总裁、董事和主要股东，依据他持有的公司四张信托担保本票提起诉讼。上诉法院维持了驳回这些起诉的请求，上诉法院在谈到：“为使亏损的公司业务得到资金以继续进行，破产公司不断地大量地从公司的四个经理人和北卡罗来那国家银行借款，向公司贷款的四个经理人Braddy, Zeliff, Craft, Foster通常首先以个人名义从银行贷款，然后作为个人财产再向公司贷款。基于公司业务的规模和公司开始从经理人和银行借款以维持经营的事实，我们认为这些因为公司成立时就资本不足而不得不借的贷款，事实上是公司资本而不是贷款。公司的股东和经理人不是投入更多的资本，而是采用贷款的形式投资，实质上是规避这类企业固有的风险，任由公司时刻处于破产的边缘。”

尽管受到质疑的原告资金投入是在公司成立以后进行的，卷宗有证据表面，原告多年来一直以所谓的贷款向破产公司投入资金，本案争议的几笔资金投入是公司资本严重不足而导致的必需的资金投入的一部分，只不过它们是最近发生的几笔资金投入。由于这三笔交易是整个“个人永久投资计划的一部分”，这些贷款不是发生于公司成立之初的事实，不是关键性问题，将这些贷款形成的债权放在其他债权人之后受偿是适当的。

根据法律原告向破产公司的资金投入是资本投入，用于对这些债权担保的信托合同也是无效的，因为事实上，没有债务供担保。

先例已经清楚地表明，单独一个事实是不会导致认定贷款为资本的结果。法院要根据公平原则调查交易的结果和交易的本质特征。原告处于这样的特殊地位，不得与在债权人竞争时，利用公司为自己优于外部债权人的权利。不需要证明存在欺诈、欺骗或违反信托义务。正如本案的事实情况，公司内部人员，公司的影子这样安排他与公司之间的交易，使自己得到优于其他外部债权人的不公平的利益，法院将把他对公司的权利主张降在其他债权人之后。
基于上述原因，上诉请求驳回，维持原判。

案例评析
公司资本是公司对债权人偿付债务的担保，起到平复公司财政波动对债权人造成的风险。当然公司资本越多债权人的债权受偿越有保证，因为股东无权请求返还资本，只能参加剩余财产的分配。股东参加剩余财产的分配是在清偿所有债务，有剩余财产的情况下进行的。美国各州的公司法多数并不要求公司在成立时必须拥有最低资本。通常不要求最低的法定资本，如果有的州要求一定数量的最低法定资本，数量也是很低的。因为公司的资本是一个变量，随公司经营的状况在不断地增加或减少。所以实践中，商人们更注重公司的现金流量和赢利的能力而不是公司的资本。这是美国公司资本制度发展至现状的原因。但是，没有法定最低资本的要求，不等于没有资本的要求。相反从判例法的分析中，我们可以看出，法律不仅要求公司存在、维持一定的资本，而且资本还必须与公司的债务和资产规模等经验条件相适应。如果股东为了在债权人之前受偿，或为了与其他债权人一起受偿，将本应投入的资本当作贷款投入，法院可以根据公平原则将股东的债权将为次等，股东债权降为次等，放在所有债权人之后受偿的地位，使股东债权人居于债权人与股东之间的地位。在什么条件下将股东债权降为次等，放在所有债权人之后受偿是公司融资法的重要问题，是保护债权人的一项制度。