John H. Miner and Holly K. Miner - Page 9




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          dispute the adjustments in the notice of deficiency and claim               
          that they overpaid income taxes by $888 for 1988, $11,247 for               
          1989, and $1,363 for 1991.                                                  
                                    II.  OPINION                                      
          A.   Covenant Not To Compete                                                
               1.   Petitioners' Contentions                                          
               Cost Less amortized over 7 years all of the $175,000 payment           
          it made to Jasiak to buy Jasiak's stock.  Petitioners now contend           
          that Cost Less may amortize only $165,000 of the $175,000 (i.e.,            
          the difference between $175,000 and what petitioners contend is             
          the $10,000 book value of Jasiak's Cost Less stock).                        
               In the alternative, petitioners contend that Cost Less may             
          amortize amounts based on the value of the covenant not to                  
          compete.  Petitioners point out that Jasiak orally promised that            
          he would not compete against Cost Less around the time Cost Less            
          agreed to buy Jasiak's stock.  Petitioners contend that the                 
          amounts paid by Cost Less to Jasiak were consideration for                  
          Jasiak's oral promise not to compete.                                       
               2.   Analysis                                                          
               A taxpayer may amortize a covenant not to compete from a               
          departing shareholder if the parties intended that some of the              
          payment from the business to the departing shareholder was for              
          the covenant, and the amount agreed to be paid for the covenant             
          reflected economic reality.  See Patterson v. Commissioner, 810             






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