Sierra Club, Inc. - Page 26




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          responses to the initial plan were accomplished in a relatively             
          short period.  We do not view petitioner’s exercise of its                  
          discretion as a disguised attempt to exercise creative or                   
          production control over ABS’s efforts.  Moreover, we do not find            
          the existence, or exercise, of petitioner’s rights to be                    
          inconsistent with a royalty arrangement.  In Wm. J. Lemp Brewing            
          Co. v. Commissioner, 18 T.C. 586 (1952), we dealt with an                   
          agreement that allowed a party to manufacture and sell beer under           
          an old family name used by the taxpayer.  The agreement reserved            
          to the taxpayer a right of approval over methods of brewing,                
          advertising, and the marketing of beer that would carry its name.           
          We stated:                                                                  
                    The significance of such provision, when read in                  
              the light of the entire agreement, is that petitioner,                  
              having licensed the use of its formulae and trade name,                 
              desired to retain the right to supervise the methods of                 
              brewing, advertising, and marketing of beer sold under                  
              the “Lemp” name for the protection and preservation of                  
              what petitioner considered a valuable property right.                   
              Since the license granted was for an indefinite period,                 
              and could be canceled by * * * [the licensee] at will,                  
              such a protective provision was a most desirable one.                   
              * * *                                                                   
          Id. at 596.  We found that payments made pursuant to the                    
          agreement to manufacture and sell beer under the family name                
          were royalties.  Id. at 597; see also Disabled Am. Veterans v.              
          Commissioner, 94 T.C. at 78.                                                
               Here, when viewed in light of the SC-ABS agreement and the             
          negotiations that preceded it, we conclude that petitioner’s                
          exercise of its right of approval with respect to ABS’s                     
          marketing proposals evidences only petitioner’s concern with                

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