Dharma Enterprises - Page 35

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          printing in 1985 in order to maintain its tax-exempt status and             
          that DM did not intend to return to the commercial printing                 
          business.  Without an intent to compete, AVG believed that the              
          covenant lacked economic meaning.  In addition, petitioner                  
          indicated to AVG that customer referrals by DM were rare.                   
               Taxpayers may amortize the amount paid for a covenant not to           
          compete over its useful life.  Sec. 167(a); Warsaw Photographic             
          Associates, Inc. v. Commissioner, 84 T.C. 21, 48 (1985).  A                 
          covenant not to compete must have "economic reality"; i.e., some            
          independent basis in fact or some arguable relationship with                
          business reality so that a reasonable person would bargain for              
          the agreement.  Patterson v. Commissioner, 810 F.2d 562, 571 (6th           
          Cir. 1987), affg. T.C. Memo. 1985-53; Beaver Bolt, Inc. v.                  
          Commissioner, T.C. Memo. 1995-549.  The parties did not allocate            
          a portion of the royalties to the covenant.                                 
               Courts apply numerous factors in evaluating a covenant not             
          to compete.  These include:  (a) The grantor's (i.e.,                       
          covenanter's) business expertise in the industry; (b) the                   
          grantor's intent to compete; (c) the grantor's economic                     
          resources; (d) the potential damage to the grantee posed by the             
          grantor's competition; (e) the grantor's contacts and                       
          relationships with customers, suppliers, and other business                 
          contacts; (f) the grantee's interest in eliminating competition;            
          (g) the duration and geographic scope of the covenant; and (h)              
          the grantor's intention to remain in the same geographic area.              
          Warsaw Photographic Associates, Inc. v. Commissioner, supra.                


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