- 6 - that the "extended earnings" qualify for capital asset treatment under section 1221, since they arose from the sale of assets used in a business. Petitioners cite Killian v. Commissioner, 314 F.2d 852 (5th Cir. 1963), affg T.C. Memo. 1961-83, and Kenney v. Commissioner, 37 T.C. 1161 (1962), to support their theory that the "extended earnings" payments constitute proceeds from the sale of "goodwill". These cases are of no particular assistance to petitioners. Neither case involved "extended earnings" or similar payments made under an agency contract in lieu of future renewal commissions upon termination of the agency contract; both cases clearly involved an express sale. Where we have upheld a taxpayer's claim that there was a sale of assets, the agreement at issue expressly referred to the transaction as a sale, and an abundance of evidence demonstrated the existence of vendible tangible assets, as well as vendible goodwill in the form of insurance expirations. * * * Erickson v. Commissioner, T.C. Memo. 1992-585, affd. without published opinion 1 F.3d 1231 (1st Cir. 1993). Here, the evidence does not support a finding of a sale of assets of a business. The record clearly shows that there was no express sales agreement, nor was there any evidence of vendible business assets. Thus, we conclude that petitioners have failed to satisfy their burden of proof that the "extended earnings" constitute gain from the sale or exchange of capital assets. Having resolved the capital asset issue, we must now address whether the extended earnings payments that petitioner receivedPage: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 Next
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