- 11 - 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.]Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Next
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