§1253 — Transfers of franchises, trademarks, and trade names
23 cases·3 followed·9 distinguished·1 questioned·1 limited·9 cited—13% support
Statute Text — 26 U.S.C. §1253
A transfer of a franchise, trademark, or trade name shall not be treated as a sale or exchange of a capital asset if the transferor retains any significant power, right, or continuing interest with respect to the subject matter of the franchise, trademark, or trade name.
For purposes of this section—
The term “franchise” includes an agreement which gives one of the parties to the agreement the right to distribute, sell, or provide goods, services, or facilities, within a specified area.
The term “significant power, right, or continuing interest” includes, but is not limited to, the following rights with respect to the interest transferred:
A right to disapprove any assignment of such interest, or any part thereof.
A right to terminate at will.
A right to prescribe the standards of quality of products used or sold, or of services furnished, and of the equipment and facilities used to promote such products or services.
A right to require that the transferee sell or advertise only products or services of the transferor.
A right to require that the transferee purchase substantially all of his supplies and equipment from the transferor.
A right to payments contingent on the productivity, use, or disposition of the subject matter of the interest transferred, if such payments constitute a substantial element under the transfer agreement.
The term “transfer” includes the renewal of a franchise, trademark, or trade name.
Amounts received or accrued on account of a transfer, sale, or other disposition of a franchise, trademark, or trade name which are contingent on the productivity, use, or disposition of the franchise, trademark, or trade name transferred shall be treated as amounts received or accrued from the sale or other disposition of property which is not a capital asset.
Any amount described in subparagraph (B) which is paid or incurred during the taxable year on account of a transfer, sale, or other disposition of a franchise, trademark, or trade name shall be allowed as a deduction under section 162(a) (relating to trade or business expenses).
An amount is described in this subparagraph if it—
is contingent on the productivity, use, or disposition of the franchise, trademark, or trade name, and
is paid as part of a series of payments—
which are payable not less frequently than annually throughout the entire term of the transfer agreement, and
which are substantially equal in amount (or payable under a fixed formula).
Any amount paid or incurred on account of a transfer, sale, or other disposition of a franchise, trademark, or trade name to which paragraph (1) does not apply shall be treated as an amount chargeable to capital account.
For purposes of determining the term of a transfer agreement under this section, there shall be taken into account all renewal options (and any other period for which the parties reasonably expect the agreement to be renewed).
23 Citing Cases
The Commissioner says this means section 1253 is inapplicable by its own terms, so the transactions are taxed as ordinary income.
The Commissioner says this means section 1253 is inapplicable by its own terms, so the transactions are taxed as ordinary income.
The Commissioner says this means section 1253 is inapplicable by its own terms, so the transactions are taxed as ordinary income.
In Jefferson-Pilot, the taxpayer's subsidiary purchased three radio stations, and the taxpayer sought a deduction under section 1253(d)(2) for a portion of the purchase price, which it claimed was attributable to Federal Communications Commission (FCC) broadcast licenses transferred pursuant to the sale. We concluded that the FCC licenses constituted franchises under section 1253, and a ratable portion of the purchase price attributable to the licenses was deductible under section 1253(d)(2). We
We concluded that the FCC licenses constituted franchises under section 1253, and a ratable portion of the purchase price attributable to the licenses was deductible under section 1253(d)(2).
eight categories delineated in sec. 1221(a) is applicable to the State tax credits. Neither party asserts the State tax credits petitioners sold properly come within any other Internal Revenue Code section determining the character of assets; e.g., sec. 1253 (specifying the character of franchises, trademarks, and trade names). - 10 - these judicially perceived motivations for capital asset treatment. Commissioner v. Ferrer, 304 F.2d 125, 133 (2d Cir. 1962), revg. and remanding 35 T.C. 617 (196
eight categories delineated in sec. 1221(a) is applicable to the State tax credits. Neither party asserts the State tax credits petitioners sold properly come within any other Internal Revenue Code section determining the character of assets; e.g., sec. 1253 (specifying the character of franchises, trademarks, and trade names). See, e.g., Watkins v. Commissioner, 447 F.3d 1269, 1273 (10th Cir. 2006) (treating the transfer of rights to lottery payments as ordinary income), affg. T.C. Memo. 2004-2
an add-back item, for amortization of intangibles. The report assumes that a purchaser of the 56.7- percent share holding would be allowed to make a section 338 election and, as a consequence, would be able to amortize the franchise agreement under section 1253. There are a variety of reasons we find this assumption unwarranted, the most compelling of which is that a purchaser of 56.7 percent of a company would not make a “qualified stock purchase”22 as required by section 338, and therefore th
torship. Thus, respondent contends that petitioner has not established a basis in excess of actual cash payments. Respondent also argues that petitioner did not actually acquire the customer lists, but instead acquired franchise rights as defined in section 1253. Respondent contends 12 that petitioner has not established that her right to the commissions from the customers contained on the lists had an ascertained value separate and distinct from other intangible rights she acquired. For purpose