Beaver Bolt Inc. - Page 16

                                                - 16 -                                                  

            v. United States, 355 F.2d 319, 325 (9th Cir. 1966); Annabelle                              
            Candy Co. v. Commissioner, 314 F.2d 1, 7-8 (9th Cir. 1962),                                 
            remanding T.C. Memo. 1961-170; Schulz v. Commissioner, supra at                             
            54; Peterson Machine Tool, Inc. v. Commissioner, 79 T.C. 72, 85                             
            (1982), affd. 84-2 USTC par. 9885, 54 AFTR 2d 84-5407 (10th Cir.                            
            1984); Major v. Commissioner, 76 T.C. 239, 251 (1981); O'Dell &                             
            Co. v. Commissioner, supra; Rudie v. Commissioner, 49 T.C. 131,                             
            139 (1967); Levinson v. Commissioner, 45 T.C. 380, 389 (1966).                              
                  a.    Grecco's Ability to Compete                                                     
                  Respondent concedes that Grecco had the physical and mental                           
            ability to compete with petitioner.  However, respondent argues                             
            that Grecco would not have been able to take much business from                             
            petitioner if she had competed.                                                             
                  We disagree.  We think Grecco's past success in cofounding                            
            petitioner shows she has the ability to compete, and that she                               
            knows how to surround herself with the necessary personnel to                               
            establish a successful business.  We conclude that Grecco would                             
            have been a good competitor.  This factor favors petitioner.                                
                  b.    Grantor's Intent to Compete                                                     
                  If the grantor would likely compete with the buyer, we                                
            are more likely to sustain an allocation to the covenant.                                   
            Sonnleitner v. Commissioner, supra (among other factors, grantor                            
            had threatened to compete).  In contrast, if the grantor is                                 
            unlikely to compete with the buyer, courts are less likely to                               





Page:  Previous  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  25  Next

Last modified: May 25, 2011