- 19 - PARR, J., concurring: I concur in the result reached by the majority. I would conclude that the termination payments received by petitioner are not subject to self-employment tax, because in my judgment the payments are in the nature of a buyout of petitioner's business by State Farm. Thus, they should be treated as a sale of a capital asset and are excluded from the definition of self-employment income under section 1402(a)(3)(A). The payments are in reality either for the goodwill of petitioner's former insurance business (his books of customer accounts) or for a covenant not to compete. If the termination payments are for goodwill, then they are attributable to the sale of a capital asset. Goodwill has been characterized as the expectation that old customers will resort to the old place of business. Goodwill is acquired by the purchaser of a going concern where the transfer enables the purchaser to step into the shoes of the seller. See Decker v. Commissioner, 864 F.2d 51, 54 (7th Cir. 1988), affg. T.C. Memo. 1987-388; Winn-Dixie Montgomery, Inc. v. United States, 444 F.2d 677, 681 (5th Cir. 1971). Here the terms of the Agreement between petitioner and State Farm allowed petitioner's successor agent to step into his shoes. The successor agent continued the same business and sold insurance to the same customers. Petitioner's goodwill, built up over a 33-year period, passed to the successor agent. State Farm served as the conduit by making payments to petitioner under the termination arrangement, butPage: Previous 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Next
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