James J. Lencke and Janene B. Lencke - Page 30

                                       - 30 -                                         
          Rule 151(e); Remuzzi v. Commissioner, T.C. Memo 1988-8, affd.               
          without published opinion 867 F.2d 609 (4th Cir. 1989).                     
               Second, we must decide whether the payments in lieu of                 
          renewal commissions received by petitioners in 1990 are subject             
          to self-employment tax.  Petitioners contend that these payments            
          are analogous to the "termination payments" received by the                 
          taxpayer in Milligan v. Commissioner, 38 F.3d 1094 (9th Cir.                
          1994), revg. T.C. Memo 1992-655, and are, therefore, not subject            
          to self-employment tax.  To the contrary, respondent contends the           
          payments merely provided a uniform manner of payment of renewal             
          commissions and retained the characteristics of renewal                     
          commissions.  Thus, respondent concludes that the payments are              
          subject to self-employment tax just as renewal commissions are              
          subject to self-employment tax.  We agree with respondent.                  
               The courts which have examined the issue of whether payments           
          made in lieu of renewal commissions are subject to self-                    
          employment tax agree that the payments are of the same character            
          as renewal commissions and are, therefore, subject to self-                 
          employment tax.  See Becker v. Tomlinson, 9 AFTR 2d 1408, 62-1              
          USTC par. 9,446 (S.D. Fla. 1962); Erickson v. Commissioner, T.C.            
          Memo. 1992-585, affd. without published opinion 1 F.3d 1231 (1st            
          Cir. 1993).  In the Becker case, the taxpayer, an insurance                 
          agent, was entitled to receive renewal commissions after the                
          termination of his contract.  An amendment to his original                  
          contract, however, allowed the taxpayer to choose to receive                




Page:  Previous  16  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  Next

Last modified: May 25, 2011