-7-
FoxVideo in that, petitioner asserts, Vision transferred to
FoxVideo the exclusive right to use the trade secrets and
know-how embodied in the Software for their useful life of less
than 4 years. Respondent argues that Vision licensed the
Software to FoxVideo in that, respondent asserts, Vision and
FoxVideo intended at the time of the pertinent agreements that
the property would be licensed in exchange for a set fee and
stated as much in those agreements.
We agree with respondent. Our decision turns on the intent
of the parties to the pertinent agreements as ascertained as of
the time that they entered into these agreements. Pickren v.
United States, 378 F.2d 595, 599-600 (5th Cir. 1967). We
ascertain this intent primarily by construing the pertinent
agreements. Id.; see also Redler Conveyor Co. v. Commissioner,
303 F.2d 567, 569 (1st Cir. 1962), affg. T.C. Memo. 1961-82.
Petitioner asserts on brief that respondent bears the burden of
proof for 1996 by virtue of section 7491(a). The parties,
however, stipulated that petitioner bears the burden of proof as
to both years. Because petitioner has not asked the Court to
vacate this stipulation, and the record does not otherwise give
us any reason to qualify, change, or contradict it, we treat the
stipulation as a conclusive admission by petitioner that
petitioner bears the burden of proof for both years. See Rule
91(e).
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