John T. Jorgl and Sharon Illi - Page 15




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          the contracting parties.  See, e.g., Elrod v. Commissioner, supra           
          at 1066; Smith v. Commissioner, supra at 713 n.8.  Under the more           
          stringent Danielson rule,                                                   
               a party can challenge the tax consequences of his                      
               agreement as construed by the Commissioner only by                     
               adducing proof which in an action between the parties                  
               to the agreement would be admissible to alter that                     
               construction or to show its unenforceability because of                
               mistake, undue influence, fraud, duress, etc. * * *                    
               [Commissioner v. Danielson, supra at 775.]                             
               This Court typically applies the strong proof rule but will            
          apply the Danielson rule when the circuit to which appeal would             
          normally lie has adopted that test.  See Golsen v. Commissioner,            
          54 T.C. 742, 756-757 (1970), affd. 445 F.2d 985 (10th Cir. 1971);           
          see also Elrod v. Commissioner, supra at 1065-1066; Smith v.                
          Commissioner, supra at 712 n.6.  However, when a contract fails             
          to make an allocation of purchase price to a covenant not to                
          compete or does so in an ambiguous manner, neither the strong               
          proof rule nor the Danielson rule is applicable.  See, e.g.,                
          Elrod v. Commissioner, supra at 1066; Smith v. Commissioner,                
          supra at 713-714.  Instead, the taxpayer must establish by a                
          preponderance of the evidence that respondent’s determination of            
          a deficiency is erroneous.  See Rule 142(a); Peterson Mach. Tool,           
          Inc. v. Commissioner, 79 T.C. 72, 81-82 (1982), affd. per order             
          (10th Cir., April 2, 1984).                                                 
               There are two primary elements to which the taxpayer’s                 
          burden of proof relates.  See Peterson Mach. Tool, Inc. v.                  






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