- 35 - 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.Page: Previous 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 Next
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