Warren L. Baker, Jr. and Dorris J. Baker - Page 2




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                    Ps reported the payment on their 1997 Federal                     
               income tax return as a long-term capital gain.  In a                   
               notice of deficiency issued to Ps, R disallowed capital                
               gain treatment and determined that the payment was                     
               ordinary income.  R did not impose self-employment tax                 
               on the income.                                                         
                    Held:  P did not own a capital asset or sell a                    
               capital asset to State Farm, nor did the termination                   
               payment P received from State Farm represent payment                   
               for transfer of a capital asset to State Farm or the                   
               successor agent.  Held, further, that Ps are not                       
               entitled to capital gain treatment for the termination                 
               payment received from State Farm in 1997.  Held,                       
               further, Ps must treat the payment received in 1997 as                 
               ordinary income.                                                       

               Thomas J. O’Rourke, for petitioners.                                   
               Roger W. Bracken, for respondent.                                      


                                       OPINION                                        

               DAWSON, Judge1:  This case was assigned to Chief Special               
          Trial Judge Peter J. Panuthos pursuant to the provisions of                 
          section 7443A(b)(5) and Rules 180, 181, and 183.2  The Court                


               1  I wrote the Court’s majority opinion in Jackson v.                  
          Commissioner, 108 T.C. 130 (1997), holding that termination                 
          payments received by the insurance agent from State Farm were not           
          subject to self-employment tax under secs. 1401 and 1402, I.R.C.            
          I also joined Judge Parr’s concurring opinion indicating that               
          such payments could be treated as being in the nature of a buyout           
          of the agent’s business.  After further consideration, I am now             
          persuaded by the opinion of Chief Special Trial Judge Panuthos              
          that this petitioner (agent) is not entitled to capital gain                
          treatment for the termination payment he received.                          
               2  Section references are to the Internal Revenue Code in              
          effect for the year in issue.  All Rule references are to the Tax           
                                                             (continued...)           





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