T.C. Memo. 1996-269
UNITED STATES TAX COURT
ROBERT SCHELBLE AND SUSAN SCHELBLE, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 12747-93. Filed June 12, 1996.
Richard Clark, for petitioners.
James Gehres, for respondent.
MEMORANDUM OPINION
FAY, Judge: By statutory notice of deficiency dated
March 17, 1993, respondent determined deficiencies in peti-
tioner's1 income tax for the taxable years 1989, 1990 and 1991,
in the amounts of $4,334, $4,489 and $1,362, respectively. The
sole issue for decision is whether termination payments provided
by petitioner's employer and received by petitioner after
retirement from service as an independent insurance agent are
1
All references to petitioner are to Robert Schelble.
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capital assets from the sale of petitioner's insurance agency or
are self-employment income subject to the self-employment tax
under sections 14012 and 1402. We hold that the payments are
self-employment income subject to self-employment tax.
This matter was submitted to the Court fully stipulated
pursuant to Rule 122. The stipulation of facts and the exhibits
attached thereto are incorporated by this reference.
At the time the petition was filed, petitioners resided in
Fort Collins, Colorado. On March 13, 1973, petitioner executed a
Career Agent's Agreement (the Agreement) with American Family
Life Insurance Co., American Family Mutual Insurance Co., and
American Standard Insurance Co. of Wisconsin (collectively the
Companies). The Companies' principal office was at Madison,
Wisconsin.
According to the Agreement, an insurance agent of the
Companies could be eligible for "extended earnings" when the
Agreement was terminated. Aside from certain paperwork and
reporting requirements, the elements which must be satisfied
under the Agreement in order for an agent to qualify for extended
earnings are: (a) Within 10 days of termination, the agent must
return to the Company all policies and policy records, manuals,
materials, advertising and supplies or other property of the
2
All section references are to the Internal Revenue Code in
effect for the years in issue, and all Rule references are to the
Tax Court Rules of Practice and Procedure, unless otherwise
indicated.
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Company; (b) the agent must have represented the Company for at
least 5 years; (c) the agent must have a specified number of
policies in force at the time of termination; and (d) the agent
must not "associate himself in any sales or sales management
capacity with another insurer engaged in writing any of the kinds
of insurance written by the company".
If an agent qualifies to receive extended earnings, the
amount of those earnings is a specified percentage of the renewal
service fees3 which were paid to the agent during his final 6 or
12 months prior to termination. The percentage increases with
the agent's consecutive years of service. The extended earnings
are payable under the Agreement regardless of the cause of termi-
nation and regardless of the age of the agent at the time of
termination. In the event of an agent's death prior to the
complete payout of the extended earnings, his legal representa-
tives are entitled to receive the earnings which the agent would
have received had he not died.
Petitioner needed to be a licensed insurance agent in order
to sell insurance for the Companies. Petitioner was responsible
for all business expenses involved in operating his insurance
agency. The Companies owned the policies, endorsements, policy
records, manuals, materials, and supplies used by petitioner to
3
Renewal service fees are payments made to an agent as a
service fee when an insurance policy is renewed and consist of a
percentage of the premiums paid by the insured.
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sell the Companies' insurance. Petitioner was obligated to
return all of these items to the Companies when the Agreement was
terminated. Petitioner was permitted to use the Companies' names
and symbols, until the Agreement was terminated. Additionally,
the Agreement provided that petitioner was not an employee of the
Companies but an independent contractor. Petitioner had control
of his activities as to the time, place, and manner of soliciting
clients.
As of March 31, 1988, petitioner terminated the Agreement
with the Companies and elected to receive his extended earnings
in 36 monthly installments. Petitioner was entitled to receive
$93,345.89 of extended earnings benefits payable in 35 monthly
installments of $2,592.95 with the last check in the amount of
$2,592.64. Petitioner received the extended earnings payments
from the Companies as follows:
1988 $20,743.60
1989 31,115.40
1990 31,115.40
1991 10,371.49
Total 93,345.89
Petitioners timely filed joint Federal income tax returns
for 1989, 1990, and 1991. Petitioners reported the extended
earnings received in 1989, 1990, and 1991 on Schedule D, Capital
Gains and Losses, as proceeds from the sale of an insurance
agency.
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On March 17, 1995, respondent sent, via certified mail, a
statutory notice of deficiency to petitioners setting forth
deficiencies in petitioners' Federal income tax for the taxable
years 1989, 1990, and 1991. Respondent contends that
petitioner's extended earnings are subject to the self-employment
tax under sections 1401 and 1402, because the extended earnings
paid to petitioner were derived from petitioner's prior insurance
business. Petitioners contend that the extended earnings are the
proceeds from the sale of petitioner's insurance agency to the
Companies and are, therefore, proceeds from the disposition of a
capital asset. In the alternative, petitioners argue that the
extended earnings are not sufficiently related to petitioner's
past insurance business in order to make the payments subject to
self-employment tax under sections 1401 and 1402.
Respondent contends that the "extended earnings" paid to
petitioner by the Companies constitute self-employment income for
purposes of the self-employment tax under sections 1401 and 1402,
because the payments were derived from a trade or business
carried on by petitioner. Petitioners have the burden of proving
respondent's determination is incorrect. Rule 142(a); Welch v.
Helvering, 290 U.S. 111 (1933). Petitioner argues that his
relinquishment to the Companies of the records and lists he
maintained with respect to the policies he sold and the policy-
holders to whom he provided service was tantamount to the sale of
business "goodwill" to the Companies. Thus, petitioners argue
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that the "extended earnings" qualify for capital asset treatment
under section 1221, since they arose from the sale of assets used
in a business. Petitioners cite Killian v. Commissioner, 314
F.2d 852 (5th Cir. 1963), affg T.C. Memo. 1961-83, and Kenney v.
Commissioner, 37 T.C. 1161 (1962), to support their theory that
the "extended earnings" payments constitute proceeds from the
sale of "goodwill". These cases are of no particular assistance
to petitioners. Neither case involved "extended earnings" or
similar payments made under an agency contract in lieu of future
renewal commissions upon termination of the agency contract; both
cases clearly involved an express sale.
Where we have upheld a taxpayer's claim that there was
a sale of assets, the agreement at issue expressly
referred to the transaction as a sale, and an abundance
of evidence demonstrated the existence of vendible
tangible assets, as well as vendible goodwill in the
form of insurance expirations. * * *
Erickson v. Commissioner, T.C. Memo. 1992-585, affd. without
published opinion 1 F.3d 1231 (1st Cir. 1993). Here, the
evidence does not support a finding of a sale of assets of a
business. The record clearly shows that there was no express
sales agreement, nor was there any evidence of vendible business
assets. Thus, we conclude that petitioners have failed to
satisfy their burden of proof that the "extended earnings"
constitute gain from the sale or exchange of capital assets.
Having resolved the capital asset issue, we must now address
whether the extended earnings payments that petitioner received
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during the years in issue represent self-employment income within
the meaning of section 1402. For the following reasons we hold
that they do.
Section 1401 imposes a tax "on the self-employment income of
every individual". Self-employment income is defined in section
1402 to mean "the net earnings from self-employment derived by an
individual * * * during any taxable year". Sec. 1402(b).
Section 1402(a) defines "net earnings from self-employment" to
mean "the gross income derived by an individual from any trade or
business carried on by such individual, less the deductions
allowed by this subtitle which are attributable to such trade or
business".
In Newberry v. Commissioner, 76 T.C. 441, 444 (1981), this
Court held that, for income to be taxable as self-employment
income, "there must be a nexus between the income received and a
trade or business that is, or was, actually carried on." Under
the Court's interpretation of the "nexus" standard, "any income
must arise from some actual (whether present, past, or future)
income-producing activity of the taxpayer before such income
becomes subject to * * * self-employment taxes". Id. at 446.
Section 1.1402(a)-1(c), Income Tax Regs., provides that, where
the required nexus exists, payments may be subject to self-
employment tax even when they are attributable in whole or in
part to services rendered in a prior taxable year. See also
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Dacey v. Commissioner, T.C. Memo. 1992-187; Rev. Rul. 68-498,
1968-2 C.B. 377.
The issue of whether an independent insurance agent's
"extended earnings" are subject to self-employment tax was most
recently addressed by this Court in Koszewa v. Commissioner, T.C.
Memo. 1994-458. In Koszewa, the taxpayer signed the same "Career
Agent's Agreement" with the same Companies as petitioner. In
Koszewa, we concluded that there was a sufficient nexus between
the extended earnings payments received by the taxpayer and the
trade or business activity in which he was engaged while
associated with the Companies. Thus, the extended earnings
received by the taxpayer in Koszewa were subject to the self-
employment tax.
Applying the Newberry nexus standard and the reasoning used
in Koszewa to petitioner, we conclude that the extended earnings
payments received by him during 1989, 1990, and 1991 related to
the trade or business activity in which he was engaged while
associated with the Companies. First, to qualify for such
payments, petitioner had to be associated with the Companies for
a certain number of years, have a certain number of policies in
place at the time of termination, and refrain from direct compe-
tition with the Companies. All of those requirements relate to
petitioner's original business with the Companies. Second, the
amount of such payments was calculated by reference to the
renewal commissions that petitioner earned in his final months
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with the Companies, a criterion obviously tied to petitioner's
services with the Companies. Finally, the agreement which
provided for such payments stated that petitioner was to be
considered "an independent contractor for all purposes and in all
situations". We find the extended earnings payments were clearly
received in respect of a prior "'trade or business * * * actually
carried on'" by petitioner. Koszewa v. Commissioner, supra
(quoting Newberry v. Commissioner, supra at 444). Thus, the
extended earnings received by petitioner are subject to self-
employment tax on the grounds that they were from a trade or
business carried on by petitioner within the meaning of section
1402. See also Dunn v. Commissioner, T.C. Memo. 1994-414;
Erickson v. Commissioner, supra.
Petitioners rely on the Court of Appeals for the Ninth
Circuit's reversal of the Tax Court in Milligan v. Commissioner,
38 F.3d 1094 (9th Cir. 1994), revg. T.C. Memo. 1992-655. In
Milligan, the taxpayer was an independent contractor who sold
State Farm Insurance policies for over 30 years. The taxpayer's
contract with State Farm provided that, upon termination, an
agent who had 2 or more years of service with the company would
receive "termination payments" for 5 years following termination.
Id. at 1096. The amount of the payments for the first post-
termination year depended on the income generated by the agent
during 12 months prior to termination. Id. For the subsequent 4
years, the payments were based on a fraction of the amount
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payable in the first post-termination year, less commission
charge-backs. None of the termination payments depended on the
length of the taxpayer's service for State Farm and his overall
earnings. Id. In Milligan, we rejected the taxpayer's
contention that the termination payments represented payment for
the sale of the taxpayer's insurance business and held that the
"termination payments" were subject to self-employment tax.
Milligan v. Commissioner T.C. Memo. 1992-655. We found that
there was a sufficient nexus between the income received and the
taxpayer's trade or business to render the payments self-
employment income. Id.
The Court of Appeals acknowledged that in order for
Mr. Milligan to receive termination payments, he had to have
worked for State Farm as an independent contractor for 2 years or
more. Milligan v. Commissioner, 38 F.3d at 1098. The court
stated, however, that this fact by itself did not create a close
enough nexus to establish that the termination payments were
derived from Mr. Milligan's prior business activity within the
meaning of the self-employment tax. Id. The Court of Appeals
concluded that Mr. Milligan already had been fully compensated
for his services and that his business activity was not the
"source" of the termination payments. Id. at 1099.
We conclude that this case is distinguishable on its facts
from Milligan due to substantial differences that exist between
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petitioner's payments herein and the payments at issue in
Milligan.
The Court of Appeals in Milligan v. Commissioner, supra at
1098, found that "To be taxable as self-employment income,
earnings must be tied to the quantity or quality of the
taxpayer's prior labor, rather than the mere fact that the
taxpayer worked or works for the payor." Here, both the quantity
and quality of petitioner's labor directly affected the amount of
his extended earnings payments.
Unlike the termination payments to the taxpayer in Milligan,
petitioner's extended earnings were based in part on how long he
had been in service for the Companies. The percentage of
petitioner's renewal service fees which would be paid to him as
"extended earnings" was determined by how many years he had
served as an agent to the Companies. To qualify for the lowest
percentage of "extended earnings" petitioner had to have repre-
sented the Companies for at least 5 years. Additionally, peti-
tioner had to have 400 or more American Family mutual casualty
fire and health policies in force and at least 50 American
Standard policies in force at the time the Agreement was
terminated in order to qualify for extended earnings. Thus, the
extended earning payments received by petitioner were tied to the
quantity, quality, and duration of his prior labor.
Another distinction is that the termination payments in
Milligan v. Commisisoner, supra at 1099:
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did not depend upon the level of Milligan's prior
business activity because the Termination Payments were
subject to two adjustments unrelated to any business
activity on Milligan's part for State Farm. The State
Farm companies adjusted the Termination Payments to
reflect the amount of income received on Milligan's
book of business during the first post-termination
year, and the number of his personally-produced
policies cancelled during that year. If all of
Milligan's customers had cancelled their State Farm
non-life policies during the first post-termination
year, then Milligan would have received nothing. The
adjusted payment amount depended not upon Milligan's
past business activity, but upon the successor agent's
future business efforts to retain Milligan's customers
and to generate service compensation for State Farm.
* * *
Milligan v. Commisisoner, supra at 1099. Petitioner's extended
earnings were based on renewal service fees paid to him during
the final months preceding the Agreement's termination. No
adjustment was made, as in Milligan, to reflect income or
cancellations during any post-termination year.
In that respect, unlike the situation in Milligan v.
Commissioner, supra, the extended earnings received by petitioner
were not paid as a consequence of some factor unrelated to
petitioner's prior business activity as an insurance salesman.
The extended earnings depended upon the amount of renewal
commissions earned by petitioner in the last months prior to
termination, the length of petitioner's service, and the level of
petitioner's prior business activity. We find that there is a
"nexus between the income received and a trade or business that
is, or was, actually carried on", within the meaning of Newberry
v. Commissioner, 76 T.C. at 444. Thus, the extended earnings
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received by petitioner are subject to self-employment tax on the
grounds that they were derived by petitioner from a trade or
business carried on by petitioner within the meaning of section
1402.
For the foregoing reasons, we hold that the "extended
earnings" received by petitioner, in the amounts stipulated, are
subject to self-employment tax under sections 1401 and 1402.
Decision will be entered
for respondent.