- 34 - It is well settled that if, in an agreement of the kind which we have here, the covenant not to compete can be segregated in order to be assured that a separate item has actually been dealt with, then so much as is paid for the covenant not to compete is ordinary income and not income from the sale of a capital asset. * * * See also General Ins. Agency, Inc. v. Commissioner, 401 F.2d 324, 329-330 (4th Cir. 1968), affg. T.C. Memo. 1967-143. It is necessary, therefore, to determine what portion of the $2,050,000 sale price must be allocated to the covenant not to compete. Petitioner bears the burden of proof. Rule 142(a); Welch v. Helvering, 290 U.S. 111, 115 (1933); Peterson Mach. Tool, Inc. v. Commissioner, 79 T.C. 72, 81 (1982), affd. without published opinion 54 AFTR 2d 84-5407, 84-2 USTC par. 9885 (10th Cir. 1984). Petitioner urges us to uphold the allocation in the purchase agreement of $820,000. Petitioner relies upon case law indicating that an allocation in a purchase agreement to a covenant not to compete will be respected for Federal income tax purposes if it was the intent of the parties to make such an allocation and the covenant possessed independent economic significance. See, e.g., Major v. Commissioner, 76 T.C. 239, 246 (1981). We decline to place reliance upon the allocation contained in the purchase agreement. The cases upholding the contracting parties' allocation of a specific amount to a covenant not toPage: 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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