Jerry L. Thomas and Freda Thomas - Page 23




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          required economic outlay.  Jerry may not increase his basis in              
          Ram by the $100,000 advanced by Mattel to Ram.                              
               Innovative Payment                                                     
               On February 2, 1996, TSI wrote a $3,000 check to Innovative.           
          Petitioners assert that TSI acted as Jerry’s agent and was merely           
          used as Jerry’s incorporated pocketbook.  The credible evidence             
          in the record does not support this assertion.  We conclude that            
          Jerry may not increase his basis in Innovative by $3,000 on the             
          basis of this transaction.                                                  
          II.  Characterization Of Noncompete Payments                                
               Petitioners’ 1989, 1990, 1991, and 1992 Federal income tax             
          returns characterized the noncompete payments as ordinary income.           
          Petitioners seek to characterize the continuation of those                  
          payments in 1993 and 1994 as capital gains.  Petitioners argue              
          primarily that they should be relieved of the tax consequences              
          flowing from the apportionment of the purchase price in the 1988            
          stock acquisition agreement.  Petitioners assert alternatively              
          that events in 1989 establish that a new agreement was reached              
          under which the noncompete payments petitioners received in 1993            
          and 1994 are treated as capital gains rather than ordinary                  
          income.                                                                     
               Primary Argument                                                       
               Given petitioners’ different residences, this case is                  
          appealable to the Courts of Appeals for the Fourth and Eleventh             






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