Phillip M. Welch and Dorothy Ellen Welch - Page 18

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             a contractual allocation to a covenant not to compete.                    
             See, e.g., Schulz v. Commissioner, 294 F.2d 52, 56                        
             (9th Cir. 1961), affg. 34 T.C. 235 (1960); Landry v.                      
             Commissioner, 86 T.C. 1284, 1307 (1986).  The economic                    
             reality of a transaction, rather than the form in which                   
             it is cast, governs for Federal income tax purposes.                      
             Hamlin's Trust v. Commissioner, supra at 764; Landry v.                   
             Commissioner, supra.  In order for a contractual allocation               
             to be upheld, it must be shown to have some independent                   
             basis in fact or some arguable relationship with business                 
             reality such that reasonable men, genuinely concerned with                
             their economic future, might bargain for such an agreement.               
             Schulz v. Commissioner, supra.  In this case, respondent                  
             determined that the realities of the transaction are                      
             different from the form in which the seller and petitioner                
             clothed the transaction.  Id.  Respondent determined that                 
             the payments purportedly for the seller's covenant not to                 
             compete were "inseparable from the total purchase price"                  
             and disallowed the deduction.                                             
                  We find that petitioners have not met their burden                   
             of proving that the covenant not to compete had economic                  
             reality.  See Rule 142(a).  In view of the seller's age                   
             and health problems, and the other facts and circumstances                
             of this case, we are not persuaded that petitioners have                  
             proven that the covenant had any independent basis in fact                




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