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claimed to be amortizable. “The taxpayer must prove what, if
anything, he actually was required to pay to obtain the item, not
what he would have been willing to pay or even what the market
value of the item was.” Better Beverages, Inc. v. United States,
supra at 428. Where, as here, the parties to an agreement are
not tax adverse as to the amount allocated to a covenant not to
compete, such allocation warrants strict scrutiny. See Wilkof v.
Commissioner, 636 F.2d 1139 (6th Cir. 1981), affg. per curiam
T.C. Memo. 1978-496; Haber v. Commissioner, 52 T.C. 255, 266
(1969), affd. per curiam 422 F.2d 198 (5th Cir. 1970); Roschuni
v. Commissioner, 29 T.C. 1193, 1202 (1958), affd. per curiam 271
F.2d 267 (5th Cir. 1959).
Petitioner concedes that Forest and Wagner did not negotiate
with respect to the allocation of $300,000 to the covenant not to
compete. Moreover, Wagner reported the entire proceeds from the
transaction as capital gain. The fact remains, however, that
Forest proposed and Wagner accepted a $300,000 allocation, as
memorialized in the Noncompete Agreement. The cases relied on by
respondent, Better Beverages, Inc. v. United States, supra;
Annabelle Candy Co. v. Commissioner, supra; Major v.
Commissioner, 76 T.C. 239 (1981); and Delsea Drive-In Theatres,
Inc. v. Commissioner, T.C. Memo. 1966-6, affd. 379 F.2d 316 (3d
Cir. 1967), are thus readily distinguishable. In those cases, no
express allocation had been made to the covenant; the purchaser
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