
    BURIEN NISSAN, INC.; Donald W. Johnson; Jacque C. Johnston, Deceased, Petitioners-Appellants, v. COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.
    No. 02-70039.
    IRS Nos. 9519-98, 12341-98, 11536-99, 16916-99.
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted Sept. 9, 2003.
    Decided Sept. 16, 2003.
    
      John P. Mele, Ryan Swanson & Cleveland, Seattle, WA, for Petitioner-Appellant.
    Gary R. Allen, Chief, U.S. Department of Justice, Appellate Section, Charles S. Casazza, Clerk, U.S. Tax Court, Richard W. Skñlman, Bruce R. Ellison, Attorney, Carol A. Barthel, Washington, DC, for Respondent-Appellee.
    Before THOMPSON, HAWKINS, and BERZON, Circuit Judges.
   MEMORANDUM

There was no clear error in the Tax Court’s factual findings that: (1) Burien Nissan acquired the covenant not to compete in conjunction with the December 1993 Agreement (thus after the effective date of I.R.C. § 197(a)); (2) the $45,483 payment to Johnston was compensation for the covenant and not for a promissory note; (3) the $290,000 payment was income to Johnston notwithstanding any assignment to Don Johnston, Inc.; and (4) the taxpayers failed to take due care to report their income.

Accordingly, we affirm the Tax Court’s decision upholding the deficiencies and penalties assessed by the Commissioner in all respects.

AFFIRMED. 
      
       This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
     