- 18 - Better Beverages, Inc. was decided before October 1, 1991, it is binding precedent in the Eleventh Circuit. See Bonner v. City of Prichard, 661 F.2d at 1207. Additionally, the Tax Court applied the mutual intent test in Jorgl, which was affirmed by the Eleventh Circuit in an unpublished per curiam opinion. See Jorgl v. Commissioner, T.C. Memo. 2000-10. In Jorgl, we stated that we would not apply the strong proof rule or the Danielson rule, see infra, when a contract failed to make an allocation of purchase price to a covenant not to compete or did so in an ambiguous manner. Jorgl v. Commissioner, supra. Instead, we stated that the taxpayer must establish, by a preponderance of evidence, that respondent’s deficiency determination is erroneous, with the threshold inquiry being “whether the parties mutually intended that an allocation of the purchase price be made to the covenant at issue”, citing Better Beverages Inc. v. United States, supra at 430. Id. If such mutual intent is found, courts then proceed to evaluate whether an allocation comports with “economic reality”. * * * An allocation will generally be given effect where “the covenants had independent economic significance such that * * * [the Court] might conclude that they were a separately bargained-for element of the agreement.” Jorgl v. Commissioner, supra (quoting Peterson Mach. Tool, Inc. v. Commissioner, 79 T.C. 72, 81 (1982), affd. 54 AFTR 2d 84-5407, 84-2 USTC par. 9885 (10th Cir. 1984)).Page: Previous 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Next
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