Robert Schelble and Susan Schelble - Page 6

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          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 received                    





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