Orin F. Farnsworth and Mary L. Farnsworth - Page 18




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          upon retirement.  Under the State Farm agreement, the taxpayer              
          was entitled to 5 years of termination payments based on a fixed            
          percentage of his final year’s commissions.  The taxpayer was               
          eligible for termination payments only if the termination                   
          occurred more than 2 years after the contract was entered into.             
               The termination payments were also subject to reduction for            
          refundable commissions that had already been earned by the                  
          taxpayer on policies that were canceled during the year following           
          termination.  The reductions were called “chargebacks”.                     
               This Court held, in a Memorandum Opinion, that the                     
          termination payments were subject to self-employment tax because            
          the payments were “derived”, in the dictionary meaning of the               
          word, from petitioner’s prior employment.  The termination                  
          payments were found to be analogous to the payment of future                
          commissions on policies written during the term of the contract,            
          which had been held subject to self-employment tax in Becker v.             
          Tomlinson, 9 AFTR 2d 1408, 62-1 USTC par. 9446 (S.D. Fla. 1962):            
                    We find that Termination Payments are the                         
               equivalent of the deferred compensation which a State                  
               Farm agent, active or retired, would receive from                      
               policies sold in prior years.  On this basis, we hold                  
               that Termination Payments are derived from self-                       
               employment, even though they are received in years                     
               subsequent to the activity which generated them.                       
               [Milligan v. Commissioner, T.C. Memo. 1992-655.]                       
               In reversing the Tax Court’s decision in Milligan, the Court           
          of Appeals for the Ninth Circuit held that “to be taxable as                
          self-employment income, earnings must be tied to the quantity or            





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