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agent. Termination payments are provided for in the section
entitled "Termination Payments" and are as described by the
majority. The Agreement provides that it is the sole and entire
agreement between the parties. No part of the agreement has to
do with anything other than the beginning, middle, and end of
petitioner’s business relationship with State Farm.
The termination payments were conditioned on petitioner’s
returning to State Farm all of its property and not competing
with State Farm for 1 year, and those payments were a product of
both petitioner’s performance during his last year with State
Farm and the staying power of petitioner’s performance for State
Farm. The payments were not otherwise identified as being in
consideration for any particular contractual obligation of
petitioner’s under the Agreement. Some portion of the
termination payments may have been in consideration for
petitioner’s promise not to compete for 1 year. The majority’s
report does not contain sufficient information from which to make
an allocation. Moreover, I am not convinced that, even if such
information were available, an allocation would be required. In
Barrett v. Commissioner, 58 T.C. 284, 289 (1972) (rejected sub
silentio with respect to its focus on the "goods-and-services
test" in Groetzinger v. Commissioner, 82 T.C. 793 (1984), affd.
771 F.2d 269 (7th Cir. 1985), affd. 480 U.S. 23 (1987)), we
accepted the parties’ agreement “that noncompetition does not
constitute the carrying on of a trade or business." In addition,
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