Warren L. Baker, Jr. and Dorris J. Baker - Page 16




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          business to which goodwill attached.  If petitioner did not sell            
          or exchange a capital asset, then the termination payment is                
          taxable as ordinary income.                                                 
               Long-term capital gain is defined as gain from the sale or             
          exchange of a capital asset held for more than 1 year.  Sec.                
          1222(3).  A “capital asset” means property held by the taxpayer             
          (whether or not connected with his trade or business) that is not           
          covered by one of five specifically enumerated exclusions.  Sec.            
          1221.                                                                       
               In Schelble v. Commissioner, T.C. Memo. 1996-269, affd. 130            
          F.3d 1388 (10th Cir. 1997), we considered whether the taxpayer              
          received gain from the sale or exchange of a capital asset.                 
          Pursuant to the terms of the agreement with the insurance company           
          for which he was an agent, the taxpayer was required to return              
          all records, manuals, materials, advertising, and supplies or               
          other property of the company.  Id.  We concluded that there was            
          no evidence of “vendible business assets”, and the record did not           
          support a finding of a sale of assets of a business.                        
               The Court of Appeals in Schelble v. Commissioner, 130 F.3d             
          at 1394, held that there was “no evidence in the record of                  
          vendible assets to support the sale of Mr. Schelble’s insurance             
          business”.  It observed the following:                                      
               By transferring policy records to * * * [the insurance                 
               company] pursuant to the Agreement, * * * [the                         
               taxpayer] maintains he transferred insurance business                  






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