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assets to his former insurance company because there was nothing
in the facts showing that there was a sale of “vendible tangible
assets” of a business. In Erickson, the Court stated:
[The taxpayers] maintain that * * * certain
indicia of a sale exist. They assert that employees
who formerly worked for * * * [the taxpayer] went over
to Union Mutual and that all records, supplies, and
equipment were turned over to Union Mutual. * * *
however, the individuals who had worked with * * * [the
taxpayer] had always been salaried employees of Union
Mutual. * * * And by his own admission, * * * [the
taxpayer] had owned very little in the way of supplies
and equipment * * *
Id.
Respondent cites Jackson v. Commissioner, 108 T.C. 130
(1997), Milligan v. Commissioner, T.C. Memo. 1992-655, revd. 38
F.3d 1094 (9th Cir. 1994), and similar cases for the proposition
that the taxpayer did not sell or exchange the assets in his
business. These cases bear a factual resemblance to the case at
hand in that the taxpayer, a former insurance agent, received a
termination payment after the termination of his agreement with
the insurance company. But these cases focus on whether the
taxpayer was subject to self-employment tax under sections 1401
and 1402.
The holdings by the Court of Appeals in Milligan and by this
Court in Jackson do not require a conclusion that the termination
payment paid to petitioner represents proceeds from the sale or
exchange of a capital asset. Both Jackson and Milligan left open
the question of whether termination payments constitute the sale
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