Sonnleitner v. C. I. R., 77-1702

• Decision Date: 09 July 1979
• Docket Number: No. 77-1702,77-1702
• Citation: 598 F.2d 464
• Parties: 79-2 USTC P 9464 Alois M. SONNLEITNER and Mildred A. Sonnleitner, Petitioners-Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 464

598 F.2d 464

79-2 USTC P 9464

Alois M. SONNLEITNER and Mildred A. Sonnleitner Petitioners-Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.

No. 77-1702.

United States Court of Appeals Fifth Circuit.

July 9, 1979.

Frank E. Magee, Portland, Or., for petitioners-appellants.

M. Carr Ferguson, Asst. Atty. Gen., Tax Div., Richard W. Perkins, Atty., Gilbert E. Andrews, Acting Chief, App. Section, Aaron P. Rosenfeld, Atty., Tax Div., U. S. Dept. of Justice, Washington, D. C., for respondent-appellee.

Appeal from the Decision of the Tax Court of the United States.

Before COLEMAN, GODBOLD and INGRAHAM, Circuit Judges.

INGRAHAM, Circuit Judge:

This appeal involves the tax treatment of certain proceeds of the sale of a business which were allocated in the purchase agreement to a covenant not to compete. Taxpayers Alois and Mildred Sonnleitner reported the proceeds as capital gains on the sale of stock. ¹ The Commissioner of Internal Revenue disputed the capital gains treatment of the proceeds, and the Tax Court agreed that the proceeds should have been reported as ordinary income. We affirm the decision of the Tax Court.

On October 11, 1954, Alois Sonnleitner and Cloyce Smith as equal partners purchased a franchise from Swanson's Cookie Company ² of Battle Creek, Michigan, which granted them the exclusive right to the production and sale of cookies under Swanson's name in Oregon and Washington. ³ From the outset of production from the plant in McMinnville, Oregon, in June 1954, the company was a financial success. While Smith managed the bakery, taxpayer assumed responsibility for sales.

On November 5, 1956, Smith and taxpayer incorporated their business under Oregon law as the Smith-Sonnleitner Cookie Company. All of the partnership assets, including the franchise agreement, were transferred to the corporation in exchange for which Smith and taxpayer each received fifty per cent of the issued capital stock. Smith and taxpayer elected themselves and their accountant, Rolland Mains, to the board of directors. ⁴ Smith became president and taxpayer secretary-treasurer of the corporation.

In 1962, the franchisor advised Smith and taxpayer of the availability of a franchise covering Louisiana, Oklahoma, and Texas. After Smith expressed disinterest, taxpayer and his wife acquired this franchise with its plant in Longview, Texas. The franchise agreement was virtually identical to that governing the Oregon corporation. ⁵

Although taxpayer continued his duties as director, secretary-treasurer, and sales manager of the Oregon corporation, he devoted much of his time to the Texas company. Smith became upset at taxpayer for spending so much time in Texas and offered to buy out taxpayer's interest in the Oregon corporation. Both Smith and taxpayer retained lawyers to assist in the negotiations. Smith initially offered $350,000 for taxpayer's fifty per cent interest. Taxpayer refused and countered with various offers, both to buy out Smith and to sell to him. ⁶

In contrast to the Oregon corporation, the Texas enterprise was a financial disaster from the outset. The plant was too small and the management poor. Creditors of the Texas company were threatening taxpayer with collection suits for overdue debts. Since Mains continued as taxpayer's financial adviser until December 1968, both Smith and Mains were aware of taxpayer's financial difficulties.

While taxpayer was in Texas for the commencement of a new plant, Smith and Mains convened a meeting of the board of directors of the Smith-Sonnleitner Cookie Company on June 13, 1967. They voted to remove taxpayer as secretary-treasurer and sales manager of the corporation and terminated his $72,000 annual salary. ⁷

Both taxpayer and Smith filed lawsuits concerning control of the Oregon corporation and taxpayer's ouster. These lawsuits were dismissed by stipulation on November 22, 1968, when taxpayer, Smith, Mains, and the Oregon corporation entered into an agreement for the purchase of taxpayer's stock. The purchase agreement provided that the sales price of taxpayer's stock would be one-half of the appraised value of the corporation, minus $75,000, which was to be paid in consideration for taxpayer's covenant not to compete with the Oregon corporation. The covenant provided in part:

In consideration of the sum of $75,000 to be paid by the corporation to Sonnleitner, Sonnleitner covenants and agrees that he will not compete directly or indirectly, either as a proprietor, partner, shareholder or a corporate officer, director or employee against the business of the corporation within its present territory consisting of the States of Oregon, Washington and Alaska at any time before January 1, 1973.

The appraised value of the corporation was $960,000. One-half of the appraised value, $480,000, minus the $75,000 allocated to the covenant not to compete established the sales price of taxpayer's stock as $405,000. Under the sales agreement, thirty per cent of the stock purchase price was payable in December 1968, with the balance payable in forty-eight monthly installments. The $75,000 allocated to the covenant not to compete was payable $15,000 per year beginning in 1968.

On their joint income tax returns for 1968, 1969 and 1970, taxpayers reported the payments received for the covenant not to compete as capital gains on the sale of stock. The Commissioner of Internal Revenue determined that the $15,000 received by taxpayers in each of the years in question represented ordinary income, not capital gain, and asserted income tax deficiencies. ⁸ The Tax Court, on October 15, 1976, entered its decision sustaining the Commissioner's determination that the $15,000 payments were in consideration for a covenant not to compete and, thus, taxable as ordinary income.

The sole issue before us is whether the proceeds of the sale of taxpayer's interest in the Smith-Sonnleitner Cookie Company allocated to the covenant not to compete represented ordinary income or capital gains. It is well settled that consideration paid for a bona fide covenant not to compete represents ordinary income to the seller, Nelson Weaver Realty Co. v. Commissioner, 307 F.2d 897, 904-05 (5th Cir. 1962), and an amortizable deduction to the buyer for the duration of the covenant, Balthrope v. Commissioner, 356 F.2d 28, 31 (5th Cir. 1966). The consideration paid for stock, however, represents a capital gain for the seller to the extent that the consideration exceeds the seller's basis in the stock, I.R.C. §§ 1202, 1221, but yields no corresponding tax benefit to the buyer.

Taxpayer advances two arguments for treating the consideration allocated to the covenant not to compete as additional consideration for the sale of his stock. First, taxpayer argues that the covenant had no basis in economic reality other than the contrivance of a tax benefit for the purchaser. Second, taxpayer argues that the covenant is void because it was entered into under economic duress. Under the rule of Ullman v. Commissioner,264 F.2d 305, 308 (2d Cir. 1959), ⁹ adopted by this court in Barran v. Commissioner, 334 F.2d 58, 64 (5th Cir. 1964),

(W)hen the parties to a transaction . . . have specifically set out the covenants in the contract and have there given them an assigned value, strong proof must be adduced by them in order to overcome that declaration.

The Tax Court held that taxpayer failed to adduce "strong proof" that the covenant lacked economic reality and was entered into under economic duress. The findings of the Tax Court will not be disturbed unless they are clearly erroneous. I.R.C. § 7482(a); Fed.R.Civ.P. 52; Christie v. Commissioner, 410 F.2d 759 (5th Cir. 1969).

The threshold question presented by taxpayer is whether "reasonable men, genuinely concerned with their economic future, might bargain for such an agreement." Schulz v. Commissioner, 294 F.2d 52, 55 (9th Cir. 1961). See Dixie Finance Co. v. United States, 474 F.2d 501, 504 (5th Cir. 1973). Taxpayer contends that the covenant was unnecessary and unrelated to business reality for three reasons. ¹⁰

First, taxpayer argues that covenants not to compete in the franchise agreements governing both the Oregon and the Texas companies barred him from competing with Smith. However, the provisions in the franchise agreements to which taxpayer refers merely grant the franchisees exclusive rights to manufacture and sell name brand cookies and restrict such manufacture and sales to the designated territory. ¹¹ These putative covenants not to compete would not prohibit taxpayer from establishing a competing cookie business in Oregon.

Second, taxpayer argues that the possibility of Smith withholding the unpaid part of the stock purchase price sufficiently deterred him from competing so as to render the covenant devoid of economic reality. However, absent the covenant not to compete, Smith would have no legal basis for withholding the unpaid stock purchase price in reaction to taxpayer's competition.

Third, taxpayer argues that the covenant was unrealistic, because he lacked the ability to compete with Smith. He claims that he was financially strapped with the debts of his Texas business. ¹² However, the fact that taxpayer offered to buy out Smith for $800,000 in July 1967 contradicts or at least questions his assertion of financial inability to compete. He apparently contemplated full ownership of both the Oregon and Texas companies.

In his testimony before the Tax Court, taxpayer admitted that he had threatened to compete with Smith both before and after his move to Texas. As sales manager of the Oregon company for fourteen years, taxpayer certainly had the business contacts to compete with Smith. Cf. Schulz, 294 F.2d at 54. A further testament to taxpayer's business acumen was his recognition by the franchisor as an outstanding salesman in 1963.

In light of taxpayer's business contacts and demonstrated selling ability, as well as his...