- 16 - 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 businessPage: Previous 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Next
Last modified: May 25, 2011