- 16 - In order to value the covenant, using the methodology adopted by petitioner, we would need to calculate the potential lost business from competition by Mr. Markley and then, as respondent correctly points out, lower that number to reflect the probability of Mr. Markley competing. Mr. Howard testified to the potential for lost sales. Mr. Howard's testimony was consistent with Mr. Ray's testimony on this issue. We realize that Mr. Ray was not testifying specifically about Mr. Markley's covenant; however, it adds to Mr. Howard's credibility that his response was in line with industry norms in the Oklahoma City area. We note, however, that lost sales in the first year would have to reflect the business reality that whatever form of competition Mr. Markley might engage in, it would take some time to implement. Using the lower end of the range, 20 percent, and factoring a time lag in the first year, the potential for lost business is approximately $300,000 the first year and $400,000 for each of the following 2 years. The analysis does not stop at this point. The potential annual lost business needs to be reduced to reflect the probability of competition taking place during each of the 3 years of the covenant. See International Multifoods Corp. v. Commissioner, 108 T.C. 25, 47-48 (1997). In evaluating the probability of competition, we take into account that the covenant was restricted to the sale of new Jeep-Eagle automobiles, which required a franchise from Chrysler. The value ascribed to the covenant must be further reduced to reflect itsPage: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Next
Last modified: May 25, 2011