James J. Lencke and Janene B. Lencke - Page 32

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          Reasoning that the payments under the Settlement Agreement had              
          the same character as the renewal commissions, we concluded that            
          the payments were subject to self-employment tax.                           
               Like the payments received by the taxpayers in the Becker              
          and Erickson cases, the payments received by Mr. Lencke in lieu             
          of renewal commissions retained the character of the renewal                
          commissions they replaced.  Petitioners cite Gump v. United                 
          States, 86 F.3d 1126 (Fed. Cir. 1996), and Milligan v.                      
          Commissioner, 38 F.3d 1094 (9th Cir. 1994), revg. T.C. Memo.                
          1992-655 to support their position that the payments received by            
          Mr. Lencke in lieu of renewal commissions were analogous to                 
          "termination payments" and therefore not subject to self-                   
          employment tax.  However, the payments in the Gump and Milligan             
          cases were not payments made in lieu of renewal commissions.  The           
          right to the payments in those cases arose from the cancellation            
          of the insurance agents' business arrangements.  They were                  
          payments specifically designated as "termination payments" or               
          "extended earnings", and, under certain circumstances, the agents           
          could have lost their right to receive the payments.8  Milligan             


          8  In Milligan v. Commissioner, 38 F.3d 1094, 1096-1097 (9th                
          Cir. 1994), revg. T.C. Memo. 1992-655, the agent's right to                 
          receive termination payments would have been canceled if all of             
          his former customers had canceled their non-life insurance                  
          policies during the first post-termination year.  In Gump v.                
          United States, 86 F.3d 1126, 1128 (Fed. Cir. 1996), the agent               
          would not have received his extended earnings if he had attempted           
          to induce his agency's policyholders to lapse, cancel, or replace           
          their insurance contracts.                                                  




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