Freres Lumber Co., Inc. - Page 34

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                         a.    The Danielson Rule                                                          
                  In Danielson, the Court of Appeals for the Third Circuit                                 
            held that a party to a contract allocating part of the purchase                                
            price to a covenant not to compete can challenge the tax                                       
            consequences of that agreement only by presenting proof which                                  
            would be admissible in an action between the parties to the                                    
            agreement to alter that construction or to show its                                            
            unenforceability because of mistake, undue influence, fraud, or                                
            duress.  Commissioner v. Danielson, supra at 775.  Not all Courts                              
            of Appeals have adopted the Danielson rule.  We do not apply it                                
            unless the Court of Appeals to which a case could be appealed has                              
            adopted it.  Elrod v. Commissioner, 87 T.C. 1046, 1065-1066                                    
            (1986); Coleman v. Commissioner, 87 T.C. 178, 202 (1986), affd.                                
            without published opinion 833 F.2d 303 (3d Cir. 1987); Golsen v.                               
            Commissioner, 54 T.C. 742, 756-757 (1970), affd. 445 F.2d 985                                  
            (10th Cir. 1971).  This case is appealable to the Court of                                     
            Appeals for the Ninth Circuit.  That Court of Appeals has not                                  
            adopted the Danielson rule.2  Therefore, we do not apply it in                                 
            cases appealable to that Court of Appeals.                                                     



                  2 The Court of Appeals for the Ninth Circuit cited                                       
            Commissioner v. Danielson, 378 F.2d 771 (3d Cir. 1967), revg. and                              
            remanding 44 T.C. 549 (1965), in Throndson v. Commissioner, 457                                
            F.2d 1022, 1025 (9th Cir. 1972), affg. Schmitz v. Commissioner,                                
            51 T.C. 306 (1968).  In Throndson, the Court of Appeals did not                                
            decide whether the Danielson rule applied because there was no                                 
            binding contract, which is required to apply the Danielson rule.                               




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