Gregg R. and Teresa M. Gilbert - Page 13

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          rather than the mere fact that the taxpayer worked or works for             
          the payor.  Jackson v. Commissioner, 108 T.C. 130 (1997).                   
               Petitioners argue that, even though the payments received by           
          petitioner after the termination of his employment as an                    
          independent agent for Conseco were renewal commission payments,             
          such payments are exempted from self-employment tax pursuant to             
          section 1402(k).                                                            
               Section 1402(k) provides:                                              
                    (k) Codification of treatment of certain termination              
               payments received by former insurance salesmen.--Nothing in            
               subsection (a) shall be construed as including in the net              
               earnings from self-employment of an individual any amount              
               received during the taxable year from an insurance company             
               on account of services performed by such individual as an              
               insurance salesman for such company if--                               
                         (1) such amount is received after termination of             
                    such individual’s agreement to perform such services              
                    for such company,                                                 
                         (2) such individual performs no services for such            
                    company after such termination and before the close of            
                    such taxable year,                                                
                         (3) such individual enters into a covenant not to            
                    compete against such company which applies to at least            
                    the 1-year period beginning on the date of such                   
                    termination, and                                                  
                         (4) the amount of such payment--                             
                              (A) depends primarily on policies sold by or            
                         credited to the account of such individual during            
                         the last year of such agreement or the extent to             
                         which such policies remain in force for some                 
                         period after such termination, or both, and                  
                              (B) does not depend to any extent on length             
                         of service or overall earnings from services                 
                         performed for such company (without regard to                





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