[84]*84MESKILL, Circuit Judge:
William and Patricia O’Hare appeal a decision of the United States Tax Court, Quealy, J., upholding a deficiency assessment of $10,131 for the taxable year 1974.1 The sole question on this appeal is whether $40,000 received in connection with the sale of certain property should be taxed as ordinary income or long term capital gain. The Tax Court determined that under the circumstances the money should be treated as ordinary income. We affirm.
BACKGROUND
The relevant facts are fully set forth in the opinion of the Tax Court and are largely undisputed here. During the years 1973 and 1974, IX Investors, Inc. (Investors) was a New York corporation engaged in the business of buying and selling real estate. In late 1973 Investors entered into a contract to buy an upstate New York farm for $248,000. Investors made a down payment of $24,800 and immediately began searching for financing for the balance. When Investors encountered difficulty in finding a lender, Richard Dean, its president, approached O’Hare, the company’s lawyer, and stated that Investors was willing to pay up to $70,000 “off the top” of the sale proceeds to anyone providing financing for the farm. Shortly thereafter, a local New York bank indicated that it would be interested in providing the financing, but, in light of Investors’ financial statement, insisted that someone of “sufficient net worth” cosign the mortgage note. At the request of Investors, O’Hare agreed to cosign the note. But after reviewing O’Hare’s financial statement, the bank decided to require O’Hare personally to take title to the property. Accordingly, on December 28, 1973, Investors and O’Hare executed an agreement to enable O’Hare to take title while Investors searched for a buyer, and to provide for transfer after that event. This agreement spawned the present dispute.2
Under the terms of the agreement, Investors agreed to assign to O’Hare its right to [85]*85purchase the farm and O’Hare agreed to obtain in his own name a mortgage of $200,000 on the farm. When a third party buyer was found, O’Hare was to reconvey the property to Investors upon the latter’s satisfaction of the mortgage and payment of a lump sum determined by the length of time the property was held: $25,000 if the property was sold within four months, $50,-000 if sold between four and eight months, and $75,000 if sold after eight months. The payments to O’Hare were not contingent upon Investors’ realizing a profit. No provision was made for sharing a loss. O’Hare was prohibited from encumbering the farm, other than by executing the $200,000 mortgage, without Investors’ consent. Shortly after this agreement was entered into, O’Hare personally signed a $200,000 note to the bank, took title to the property, and executed a mortgage in favor of the bank to secure the note. Investors paid the transactional costs, including attorney’s fees. Although the agreement was silent as to who was responsible for paying the mortgage interest and the taxes on the property, Investors in fact paid both.
In August 1974, Investors located a buyer and the property was sold for $335,000.3 Although O’Hare was entitled by the terms of the agreement to keep $50,000, he agreed to settle for $40,000 so that Investors could realize some profit on its investment. On their joint return for 1974, the O’Hares reported the $40,000 as long term capital gain from the sale of a capital asset.4 The IRS detertained that the sum was a fee for obtaining financing and was therefore ordinary income. The Tax Court upheld the IRS, and O’Hare appeals.
DISCUSSION
O’Hare concedes that the substance rather than the form of the transaction governs tax treatment, see Commissioner v. Court Holding Company, 324 U.S. 331, 334, 65 S.Ct. 707, 708, 89 L.Ed. 567 (1945), but insists that the substance of this deal was “in the nature of a joint venture.” In support of this position, O’Hare points out that the assignment did not indemnify him against liability for carrying charges on the property, nor against liability for accidents occurring on the property, nor against loss in the event Investors never sought or obtained a third party buyer. Investors would not sell unless it could realize a profit, and O’Hare would not receive any money unless Investors sold. O’Hare also claims that if the property was sold for less than $200,000, he would have had to use his own funds in addition to the sales proceeds to satisfy the mortgage. Thus, O’Hare argues, he was sufficiently involved with the profitability of the venture to warrant treatment as a joint venturer.
The Tax Court was unimpressed with these arguments. Finding that O’Hare “never had any intention of buying the property in his own right,” the court concluded that he took title to the property only because that was a requirement of the loan transaction. He contributed none of his own funds, other than the loan which was obtained on the strength of his credit and which required no out-of-pocket expenditures. As for his risks, the Tax Court found them more imagined than real, and not materially different from those borne by other lenders. Finally, the court found that the payment schedule militated against a finding of co-ownership, since the fee was contingent upon the holding period rather than any gain resulting from the sale of the property. Thus, the court concluded that O’Hare “merely received a fee” for providing the funds to buy the property, and that the fee was taxable as ordinary income.
[86]*86The factual findings and inferences of the Tax Court are considered under a “quite restricted” standard of review and must be given “primary weight,” Commissioner v. Duberstein, 363 U.S. 278, 289-91, 80 S.Ct. 1190, 1198-1199, 4 L.Ed.2d 1218 (1960), whereas its legal conclusions are entitled to no such deference. We decline to enter the debate of whether the assailed conclusions of the Tax Court were factual inferences or legal conclusions, see Weddle v. Commissioner, 325 F.2d 849, 851 (2d Cir. 1963), since we agree on both the facts and the law that the $40,000 was essentially a fee for the use of O’Hare’s credit rather than “gain” from the sale of a capital asset. See Comtel Corporation v. Commissioner, 376 F.2d 791, 795-96 (2d Cir.), cert. denied, 389 U.S. 929, 88 S.Ct. 290, 19 L.Ed.2d 280 (1967).
We start with common ground. No one would dispute that if O’Hare had simply given his guarantee, as originally planned, and had received a fee for doing so, the money would be ordinary income. Nor could anyone seriously contend that the mere holding of legal title, without more, is sufficient to assure capital gain treatment. See Comtel Corporation v. Commissioner, supra, 376 F.2d at 796-97. Such a rule would exalt form over substance and would provide a ready means for those seeking to achieve the tax benefits of true investment without incurring the usual risks.
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[84]*84MESKILL, Circuit Judge:
William and Patricia O’Hare appeal a decision of the United States Tax Court, Quealy, J., upholding a deficiency assessment of $10,131 for the taxable year 1974.1 The sole question on this appeal is whether $40,000 received in connection with the sale of certain property should be taxed as ordinary income or long term capital gain. The Tax Court determined that under the circumstances the money should be treated as ordinary income. We affirm.
BACKGROUND
The relevant facts are fully set forth in the opinion of the Tax Court and are largely undisputed here. During the years 1973 and 1974, IX Investors, Inc. (Investors) was a New York corporation engaged in the business of buying and selling real estate. In late 1973 Investors entered into a contract to buy an upstate New York farm for $248,000. Investors made a down payment of $24,800 and immediately began searching for financing for the balance. When Investors encountered difficulty in finding a lender, Richard Dean, its president, approached O’Hare, the company’s lawyer, and stated that Investors was willing to pay up to $70,000 “off the top” of the sale proceeds to anyone providing financing for the farm. Shortly thereafter, a local New York bank indicated that it would be interested in providing the financing, but, in light of Investors’ financial statement, insisted that someone of “sufficient net worth” cosign the mortgage note. At the request of Investors, O’Hare agreed to cosign the note. But after reviewing O’Hare’s financial statement, the bank decided to require O’Hare personally to take title to the property. Accordingly, on December 28, 1973, Investors and O’Hare executed an agreement to enable O’Hare to take title while Investors searched for a buyer, and to provide for transfer after that event. This agreement spawned the present dispute.2
Under the terms of the agreement, Investors agreed to assign to O’Hare its right to [85]*85purchase the farm and O’Hare agreed to obtain in his own name a mortgage of $200,000 on the farm. When a third party buyer was found, O’Hare was to reconvey the property to Investors upon the latter’s satisfaction of the mortgage and payment of a lump sum determined by the length of time the property was held: $25,000 if the property was sold within four months, $50,-000 if sold between four and eight months, and $75,000 if sold after eight months. The payments to O’Hare were not contingent upon Investors’ realizing a profit. No provision was made for sharing a loss. O’Hare was prohibited from encumbering the farm, other than by executing the $200,000 mortgage, without Investors’ consent. Shortly after this agreement was entered into, O’Hare personally signed a $200,000 note to the bank, took title to the property, and executed a mortgage in favor of the bank to secure the note. Investors paid the transactional costs, including attorney’s fees. Although the agreement was silent as to who was responsible for paying the mortgage interest and the taxes on the property, Investors in fact paid both.
In August 1974, Investors located a buyer and the property was sold for $335,000.3 Although O’Hare was entitled by the terms of the agreement to keep $50,000, he agreed to settle for $40,000 so that Investors could realize some profit on its investment. On their joint return for 1974, the O’Hares reported the $40,000 as long term capital gain from the sale of a capital asset.4 The IRS detertained that the sum was a fee for obtaining financing and was therefore ordinary income. The Tax Court upheld the IRS, and O’Hare appeals.
DISCUSSION
O’Hare concedes that the substance rather than the form of the transaction governs tax treatment, see Commissioner v. Court Holding Company, 324 U.S. 331, 334, 65 S.Ct. 707, 708, 89 L.Ed. 567 (1945), but insists that the substance of this deal was “in the nature of a joint venture.” In support of this position, O’Hare points out that the assignment did not indemnify him against liability for carrying charges on the property, nor against liability for accidents occurring on the property, nor against loss in the event Investors never sought or obtained a third party buyer. Investors would not sell unless it could realize a profit, and O’Hare would not receive any money unless Investors sold. O’Hare also claims that if the property was sold for less than $200,000, he would have had to use his own funds in addition to the sales proceeds to satisfy the mortgage. Thus, O’Hare argues, he was sufficiently involved with the profitability of the venture to warrant treatment as a joint venturer.
The Tax Court was unimpressed with these arguments. Finding that O’Hare “never had any intention of buying the property in his own right,” the court concluded that he took title to the property only because that was a requirement of the loan transaction. He contributed none of his own funds, other than the loan which was obtained on the strength of his credit and which required no out-of-pocket expenditures. As for his risks, the Tax Court found them more imagined than real, and not materially different from those borne by other lenders. Finally, the court found that the payment schedule militated against a finding of co-ownership, since the fee was contingent upon the holding period rather than any gain resulting from the sale of the property. Thus, the court concluded that O’Hare “merely received a fee” for providing the funds to buy the property, and that the fee was taxable as ordinary income.
[86]*86The factual findings and inferences of the Tax Court are considered under a “quite restricted” standard of review and must be given “primary weight,” Commissioner v. Duberstein, 363 U.S. 278, 289-91, 80 S.Ct. 1190, 1198-1199, 4 L.Ed.2d 1218 (1960), whereas its legal conclusions are entitled to no such deference. We decline to enter the debate of whether the assailed conclusions of the Tax Court were factual inferences or legal conclusions, see Weddle v. Commissioner, 325 F.2d 849, 851 (2d Cir. 1963), since we agree on both the facts and the law that the $40,000 was essentially a fee for the use of O’Hare’s credit rather than “gain” from the sale of a capital asset. See Comtel Corporation v. Commissioner, 376 F.2d 791, 795-96 (2d Cir.), cert. denied, 389 U.S. 929, 88 S.Ct. 290, 19 L.Ed.2d 280 (1967).
We start with common ground. No one would dispute that if O’Hare had simply given his guarantee, as originally planned, and had received a fee for doing so, the money would be ordinary income. Nor could anyone seriously contend that the mere holding of legal title, without more, is sufficient to assure capital gain treatment. See Comtel Corporation v. Commissioner, supra, 376 F.2d at 796-97. Such a rule would exalt form over substance and would provide a ready means for those seeking to achieve the tax benefits of true investment without incurring the usual risks. Rather, the question is whether O’Hare’s holding of title, together with his financial exposure in the event that the property was sold for less than $200,000, or, indeed, was never sold at all, essentially converted O’Hare from a mere guarantor into a joint venturer.
We think the Tax Court was amply justified in concluding that the claimed risks did not convert O’Hare into a joint venturer. O’Hare enjoyed a considerable measure of personal protection by virtue of the $48,000 which Investors had paid above the $200,000 mortgage. The extent of Investors’ investment in the property surely helped minimize the risk that the company would simply walk away from the deal or fail to exercise due diligence in pursuing a third party buyer, and is an indication that it was thought unlikely that the property would be sold for less than $200,000. Furthermore, even though the assignment did not indicate that Investors would pay the carrying charges on the property, that Investors did pay these costs certainly suggests that this was in fact the understanding. Finally, the Tax Court was justified in inferring that the payment schedule undermined O’Hare’s joint venture claim. It is hardly likely that a true owner or joint venturer would agree to an arrangement whereby his profit depended upon the timing of the sale rather than the amount of the proceeds of the sale. Such a payment mechanism clearly suggests a fee for the use of credit rather than a gain from the sale of property.
The present case is legally indistinguishable from Comtel Corporation v. Commissioner, supra, where this Court upheld the Tax Court’s rejection of the taxpayer’s capital gains argument. In Comtel, the Zeckendorf Corporation had the opportunity to acquire a controlling block of shares in the Hotel Commodore, but had been unable to secure financing. Zeckendorf eventually approached two potential lenders and, with them, formed the Comtel Corporation. Comtel then obtained a loan, Zeckendorf used the loan proceeds to buy the stock, and then Zeckendorf sold the stock to Comtel for the exact purchase price, retaining an option to repurchase the stock shortly after the capital gains holding period was satisfied. The “repurchase price” was to include Comtel’s acquisition price, all pf Comtel’s expenses in the matter, including organizational and liquidation expenses, a six percent return on Comtel’s capital investment, and a sizable lump sum. The arrangement went as planned: Zeckendorf found a new lender and repurchased the shares from Comtel. The Tax Court refused to recognize the elaborate scheme as a stock purchase and resale, holding that in substance the transactions were “merely steps in a complex, prearranged financing plan.” 45 T.C. 294, 304 (1965).
In affirming, we placed particular emphasis on five findings of the Tax Court. First, Zeckendorf never wavered in its de[87]*87sire to acquire the Commodore stock and never intended Comtel to displace it as the true owner. Second, the investors in Com-tel Corporation were primarily interested in a high yield, low risk investment, rather than in hotel ownership or operation. Third, Comtel was not permitted to sell or dispose of the Commodore stock. Fourth, Comtel’s profit depended solely on a prearranged option price, not on appreciation in the value of the stock. Fifth, the repurchase price had two variable components: Comtel’s expenses in the matter and interest on principal — typical characteristics of compensation for the use of another’s money-
The similarities to the present case are more than superficial. Like Comtel, O’Hare never intended to be more than a temporary accommodation holder of title to satisfy the loan requirements of the bank, and the extent of Investors’ cash investment helped ensure that Investors would make every effort to see that O’Hare’s intentions were realized. Investors continued to pay the carrying costs and to search for a buyer.5 O’Hare’s entirely passive role indicates that he did not intend to acquire the farm as a capital investment, but only as a means for obtaining compensation for his financial services. That O’Hare was not permitted to encumber the property and was not permitted to share in any of the profits above his prearranged fee militates against a finding that he was in essence a joint venturer. The only factual difference we see between this case and Comtel is that here O’Hare claimed that he assumed the risk of loss should the proceeds from the sale of the property fail to cover the mortgage principal. This does not change our conclusion, however, since, as the Tax Court noted, the risk assumed by O’Hare did not differ significantly from that assumed by a lender to a non-recourse borrower. Thus, the Tax Court was fully justified in inferring that the “total effect” of the real estate transaction here in question was that of a financing scheme rather than a joint venture. See Comtel Corporation v. Commissioner, supra, 376 F.2d at 797.
Judgment affirmed.