R. William Becker and Mary Ann Becker - Page 17

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          Service asserted protective deficiencies against both parties.              
          Id. at 426.                                                                 
               The Federal District Court granted summary judgment in favor           
          of the seller of the business treating the gain as gain from the            
          sale of capital assets and rejected Better Beverages’ unilateral            
          allocation in the absence of any evidence that both parties                 
          agreed to the allocation.  Id. at 426-427.  The Fifth Circuit               
          affirmed the District Court, stating:                                       
               our rejection of Better Beverages’ unilateral                          
               assertions of value as an inadequate indicator of                      
               actual cost basis is wholly consistent with the trend                  
               among other courts, in cases like this one, to require                 
               the buyer to prove that the parties mutually intended                  
               at the time of the sale that some portion of the lump                  
               sum consideration be allocated to the seller’s covenant                
               not to compete.  * * *  the most efficacious method                    
               and, ordinarily, the only truly reliable and                           
               practicable way for a purchaser to satisfy his burden                  
               in a case like this one is by proof of the parties’                    
               specific agreement, expressed or implied, to allocate                  
               some portion of the lump sum purchase price to the                     
               covenant * * *.  Better Beverages cannot travel this                   
               smooth road, however.  * * * Better Beverages conceded                 
               not only that no agreement had ever been reached                       
               regarding allocation of some portion of the price to                   
               the covenant, but also that such a price or allocation                 
               apparently never had been discussed by the parties.                    
               The ultimate inquiry is * * * what, if any, portion of                 
               the lump sum price actually was exchanged for the                      
               covenant * * *.                                                        
          Id. at 430-431 (emphasis added).                                            
               The Eleventh Circuit has never explicitly addressed the                
          mutual intent test set forth in Annabelle Candy Co. and adopted             
          by the Fifth Circuit in Better Beverages, Inc.  However, because            






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