Chickie's and Pete's, Inc. - Page 11

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          INDOPCO, Inc. v. Commissioner, 503 U.S. 79, 84 (1992).                      
               On brief, respondent concedes that petitioner is entitled to           
          deduct as a royalty fee for the year at issue $441,210 of the               
          $902,476 that petitioner claimed as a deduction for the payment             
          under petitioner’s license agreement.6  However, it is respon-              
          dent’s position that petitioner has failed to establish that it             
          is entitled to a deduction in excess of the amount that respon-             
          dent concedes.  In support of that position, respondent asserts:            
               Mr. Ciarrocchi testified that he believed that peti-                   
               tioner should pay a higher royalty fee than Ogden [paid                
               under the Ogden license agreement] because he had                      
               developed additional recipes for petitioner’s use                      
               * * *.  However, both agreements [the Ogden license agree-             
               ment and petitioner’s license agreement] contain the same              
               terms concerning the use of Mr. Ciarrocchi’s family recipes.           
               There is nothing in the Ogden licensing agreement that                 
               limits the number of recipes covered by the agreement, nor             
               did Mr. Ciarrocchi testify that there were any such limita-            
               tions.  Therefore, there is no basis for concluding that the           
               right granted to petitioner under * * * [petitioner’s]                 
               license agreement to use Mr. Ciarrocchi’s recipes had any              
               greater value than the same right granted to Ogden under               
               * * * [Ogden’s license] agreement * * *.  To the extent that           
               Mr. Ciarrocchi provided services to petitioner that he did             
               not provide to Ogden, he did so as an officer and employee             
               of petitioner and not pursuant to the license agreement.               

               6Respondent states on brief:                                           
               Respondent concedes that the Ogden license agreement                   
               was negotiated at arm’s length and, thus, is extremely                 
               probative evidence of the fair market value of the                     
               rights conveyed to petitioner under * * *                              
               [petitioner’s] license agreement.  Consequently,                       
               respondent concedes that petitioner is entitled to                     
               deduct a royalty fee of $441,210, which is equal to 11%                
               of its “gross sales” as that term is defined in * * *                  
               [petitioner’s] license agreement.  [Fn. ref. omitted.]                 






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