Donald L. Chiappetti and Mary K. Chiappetti - Page 8

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          affg. T.C. Memo. 1976-249; Montesi v. Commissioner, 340 F.2d 97,            
          100 (6th Cir. 1965), affg. 40 T.C. 511 (1963); Hamlin's Trust v.            
          Commissioner, 209 F.2d 761, 765 (10th Cir. 1954), affg. 19 T.C.             
          718 (1953); see Yandell v. United States, 315 F.2d 141, 142-143             
          (9th Cir. 1963) (per curiam).  "Money paid as consideration for a           
          covenant not to compete is regarded as income received in place             
          of that which the taxpayer might otherwise have earned in the               
          field of enterprise from which the covenant excludes him [or                
          her]."  Montesi v. Commissioner, supra.                                     
               As we understand petitioners' principal position, they argue           
          that CPC, and not petitioner, entered into the covenant not to              
          compete for which Donald C. Chiappetti paid $76,000 because that            
          covenant was binding on CPC and therefore obligated CPC, and not            
          petitioner, to refrain from practicing dentistry and from solic-            
          iting its patient base, which petitioners describe as CPC's most            
          important asset, as provided in that covenant.  Respondent con-             
          tends that the income from the covenant not to compete is at-               
          tributable to petitioner because (1) that covenant obligates                
          petitioner in his individual capacity, and not CPC, to refrain              
          from practicing dentistry and from soliciting patients as pro-              
          vided therein, and (2) he cannot escape tax on that income by               
          assigning it to his wholly owned corporation.  We agree with                
          respondent.                                                                 
               We find nothing in the covenant not to compete or in any               





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