The Brinson Company-Midwest, Inc., et al - Page 10

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               Generally, when the Commissioner presents evidence which, if           
          credited by the Court, is sufficient to support a decision in the           
          Commissioner's favor, there will be a reasonable basis for the              
          Commissioner's position.  See Wilfong v. United States, 991 F. 2d           
          359, 369 (7th Cir. 1993).                                                   
               From the onset of the underlying actions, respondent                   
          questioned the valuation of the covenant not to compete.                    
          Respondent was primarily concerned with how the total amount paid           
          to Brigitte was allocated between the stock redemption price and            
          the covenant not to compete.  Such concern is clearly legitimate.           
          There has been a great deal of litigation involving the                     
          allocation of a purchase price to a covenant not to compete.                
          See, e.g., Throndson v. Commissioner, 457 F.2d 1022, 1024 (9th              
          Cir. 1972), affg. Schmitz v. Commissioner, 51 T.C. 306 (1968);              
          Commissioner v. Danielson, 378 F.2d 771, 775 (3d Cir. 1967),                
          vacating and remanding 44 T.C. 549 (1965); Ullman v.                        
          Commissioner, 264 F.2d 305, 307-308 (2d Cir. 1959), affg. 29 T.C.           
          129 (1957); Major v. Commissioner, 76 T.C. 239 (1981).  The                 
          principal inquiry has been whether the amount allocated to the              
          covenant not to compete reflected business reality or whether               
          that amount was artificially allocated to such covenant solely              
          for tax purposes.                                                           
               Covenants not to compete are intangible capital assets and             
          their cost may be amortized over their useful lives.  See                   
          Peterson Machine Tool, Inc. v. Commissioner, 79 T.C. 72, 80                 




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