Douglas J. And Marguerite H. Lemery, and Raymond J. And Myrtle Lemery v. Commissioner of Internal Revenue

Ninth Circuit

Douglas J. And Marguerite H. Lemery, and Raymond J. And Myrtle Lemery v. Commissioner of Internal Revenue

451 F.2d 173, 28 A.F.T.R.2d (RIA) 6047, 1971 U.S. App. LEXIS 7043

CourtCourt of Appeals for the Ninth Circuit

DecidedNovember 18, 1971

Docket24909

StatusPublished

Cited by54 cases

This text of 451 F.2d 173 (Douglas J. And Marguerite H. Lemery, and Raymond J. And Myrtle Lemery v. Commissioner of Internal Revenue) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Douglas J. And Marguerite H. Lemery, and Raymond J. And Myrtle Lemery v. Commissioner of Internal Revenue, 451 F.2d 173, 28 A.F.T.R.2d (RIA) 6047, 1971 U.S. App. LEXIS 7043 (9th Cir. 1971).

Pincite

Opinion

PER CURIAM:

This appeal from a judgment of the Tax Court involves federal income taxes for the year 1960. The findings of fact and opinion of the Tax Court are reported at 52 T.C. 367 (1969). We affirm.

In a contract of purchase and sale of three corporations which owned two motels, a laundry and a cocktail lounge, the seller, a Canadian citizen, gave a covenant not to compete within the Portland, Oregon area for five years. The taxpayer-appellants agreed that, of the purchase price of $1,131,000, the sum of $200,000 was to apply to the covenant. Thereafter, the buyers, appellants herein, attempted to deduct as a business expense $40,000 per year, based on a five-year amortization of the cost basis allocated to the covenant not to compete.

The Commissioner disallowed the deduction for the amortization of the covenant and increased the taxable income of each taxpayer accordingly. The Tax Court upheld the Commissioner’s disal-lowance upon two grounds: (1) the taxpayers had not shown that the covenant not to compete had a cost basis to amortize and (2) they had not shown that the covenant was of a type that could be amortized.

The Tax Court found that the covenant had no economic reality, but was only a paper promise given to provide tax benefits to the buyers. In Schulz v. C. I. R., 294 F.2d 52 (9th Cir. 1961), we said:

“* * * [W]e think that the covenant must have some independent basis in fact or some arguable relationship with business reality such that reasonable men, genuinely concerned with their economic future, might bargain for such an agreement.” 294 F.2d at 55.

The covenant in this case does not qualify for the reasons stated in the Tax Court opinion.

Affirmed.

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PER CURIAM:

This appeal from a judgment of the Tax Court involves federal income taxes for the year 1960. The findings of fact and opinion of the Tax Court are reported at 52 T.C. 367 (1969). We affirm.

In a contract of purchase and sale of three corporations which owned two motels, a laundry and a cocktail lounge, the seller, a Canadian citizen, gave a covenant not to compete within the Portland, Oregon area for five years. The taxpayer-appellants agreed that, of the purchase price of $1,131,000, the sum of $200,000 was to apply to the covenant. Thereafter, the buyers, appellants herein, attempted to deduct as a business expense $40,000 per year, based on a five-year amortization of the cost basis allocated to the covenant not to compete.

The Commissioner disallowed the deduction for the amortization of the covenant and increased the taxable income of each taxpayer accordingly. The Tax Court upheld the Commissioner’s disal-lowance upon two grounds: (1) the taxpayers had not shown that the covenant not to compete had a cost basis to amortize and (2) they had not shown that the covenant was of a type that could be amortized.

The Tax Court found that the covenant had no economic reality, but was only a paper promise given to provide tax benefits to the buyers. In Schulz v. C. I. R., 294 F.2d 52 (9th Cir. 1961), we said:

“* * * [W]e think that the covenant must have some independent basis in fact or some arguable relationship with business reality such that reasonable men, genuinely concerned with their economic future, might bargain for such an agreement.” 294 F.2d at 55.

The covenant in this case does not qualify for the reasons stated in the Tax Court opinion.

Affirmed.

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Bluebook (online)

451 F.2d 173, 28 A.F.T.R.2d (RIA) 6047, 1971 U.S. App. LEXIS 7043, Counsel Stack Legal Research, https://law.counselstack.com/opinion/douglas-j-and-marguerite-h-lemery-and-raymond-j-and-myrtle-lemery-v-ca9-1971.

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