                                                RETIEF GOOSEN, PETITIONER v. COMMISSIONER                                     OF
                                                       INTERNAL REVENUE, RESPONDENT
                                                        Docket No. 23323–09.                           Filed June 9, 2011.

                                                  P, a professional golfer, entered into endorsement agree-
                                               ments with sponsors Acushnet, TaylorMade, Izod, Upper
                                               Deck, Electronic Arts and Rolex. P agreed to allow all spon-
                                               sors to use his name, face, image and likeness in advertising
                                               and marketing campaigns worldwide. P also agreed to per-
                                               form some services for the sponsors. All endorsement agree-
                                               ments paid P a base endorsement fee. Acushnet, TaylorMade
                                               and Izod prorated P’s base endorsement fee if he did not
                                               annually play in a specified number of golf tournaments.
                                               Moreover, Acushnet, TaylorMade and Izod provided bonuses
                                               to P for achieving a specific finish in a PGA or European Tour
                                               tournament or a specified ranking on the World Golf
                                               Rankings. P characterized the endorsement fees and bonuses
                                               from Acushnet, TaylorMade and Izod as 50 percent personal
                                               services income and 50 percent royalty income on his non-
                                               resident Federal income tax returns for 2002 and 2003. P
                                               characterized the endorsement fees from Upper Deck, Elec-
                                               tronic Arts and Rolex as 100 percent royalty income. P
                                               reported approximately seven percent of the total endorse-
                                               ment income as U.S.-source income. R determined that P
                                               should have characterized the endorsement fees and bonuses
                                               from Acushnet, TaylorMade and Izod as 100 percent personal
                                               services income. R also reallocated a larger percentage of P’s
                                               endorsement fees as U.S.-source income.
                                                  1. Held: The endorsement fees and bonuses P received from
                                               Acushnet, TaylorMade and Izod are allocated 50 percent to
                                               personal services income and 50 percent to royalty income.
                                                  2. Held, further, the royalty income P received from
                                               Acushnet, TaylorMade and Izod is 50 percent U.S.-source
                                               income effectively connected with a U.S. trade or business.
                                               The royalty income P received from Rolex is 50 percent U.S.-
                                               source income not effectively connected with a U.S. trade or
                                               business. The royalty income P received from Upper Deck is
                                               92 percent U.S.-source income not effectively connected with
                                               a U.S. trade or business. The royalty income P received from
                                               Electronic Arts is 70 percent U.S.-source income not effec-
                                               tively connected with a U.S. trade or business.
                                                  3. Held, further, P does not benefit from any provision
                                               under the 1975 or the 2001 U.S.-U.K. income tax treaty.

                                       Aaron H. Bulloff, Stephen L. Kadish, and Matthew F.
                                      Kadish, for petitioner.
                                       Lindsey D. Stellwagen, Warren P. Simonsen, Nina E.
                                      Chowdhry, and Jeffrey E. Gold, for respondent.
                                                                                                                                       547




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                                      548                136 UNITED STATES TAX COURT REPORTS                                         (547)


                                         KROUPA, Judge: Respondent determined that petitioner, a
                                      non-domiciliary United Kingdom (U.K.) resident, had Federal
                                      income tax deficiencies from income he received from world-
                                      wide endorsement agreements for 2002 and 2003 (the years
                                      at issue). 1 Respondent determined a $20,224 deficiency for
                                      2002 and a $144,474 deficiency for 2003.
                                         After concessions, there are three issues for decision. The
                                      first issue is whether endorsement fees and bonuses peti-
                                      tioner, a U.K. resident, received from worldwide endorsement
                                      agreements with Acushnet Company (Acushnet), TaylorMade
                                      Golf Company, Inc. (TaylorMade) and Izod Club, a division
                                      of Oxford Industries, Inc. (Izod) should be characterized as
                                      solely personal services income, solely royalty income or part
                                      personal services income and part royalty income. We hold
                                      that the income is part personal services income and part
                                      royalty income. We next consider whether any income we
                                      allocated as royalty income from the Acushnet, TaylorMade
                                      and Izod endorsement agreements as well as the royalty
                                      income petitioner received from worldwide endorsement
                                      agreements with Upper Deck Company, LLC (Upper Deck),
                                      Montres Rolex S.A. (Rolex) and Electronic Arts Inc. (Elec-
                                      tronic Arts) is from sources within the United States. We
                                      hold that a portion of the royalty income from all the
                                      endorsement agreements is U.S.-source income. We finally
                                      consider whether petitioner, a U.K. resident, may benefit
                                      from provisions under the Convention for the Avoidance of
                                      Double Taxation and the Prevention of Fiscal Evasion with
                                      respect to Taxes on Income and Capital Gains, U.S.-U.K.,
                                      Dec. 31, 1975, 31 U.S.T. 5668 (1975 U.S.-U.K. tax treaty), or
                                      the Convention for the Avoidance of Double Taxation and the
                                      Prevention of Fiscal Evasion with respect to Taxes on Income
                                      and on Capital Gains, U.S.-U.K., July 24, 2001, Tax Treaties
                                      (CCH) par. 10,901 (2001 U.S.-U.K. tax treaty) (together, the
                                      U.S.-U.K. tax treaties). 2 We find he does not.



                                        1 Respondent also determined accuracy-related penalties in the deficiency notice but now con-

                                      cedes that petitioner is not liable for such penalties. Only the deficiencies remain at issue.
                                        2 The 1975 U.S.–U.K. tax treaty was in force Apr. 25, 1980, until Mar. 31, 2003, at which time

                                      the 2001 U.S.–U.K. tax treaty came into force. The treaties are substantially similar and their
                                      differences do not affect our decision.




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                                      (547)                         GOOSEN v. COMMISSIONER                                           549


                                                                          FINDINGS OF FACT

                                        Some of the facts have been stipulated and are so found.
                                      We incorporate the stipulation of facts and the accompanying
                                      exhibits by this reference. Petitioner, a citizen of South
                                      Africa, resided in the United Kingdom at the time he filed
                                      the petition.
                                        Petitioner is a professional golfer. He began his profes-
                                      sional golf career on the South African Tour in 1988. He
                                      earned ‘‘Rookie of the Year’’ in his first year on the South
                                      African Tour, and he developed as one of the better golfers
                                      in South Africa. Petitioner’s success in South Africa allowed
                                      him to earn his tour card 3 on the European Tour in 1991.
                                      Petitioner met his wife, a citizen of the United Kingdom,
                                      shortly after joining the European Tour, and the two decided
                                      to make London, England, their permanent residence.
                                        Petitioner was required as a member of the European Tour
                                      to play in a minimum of 11 European Tour tournaments
                                      each year to maintain his tour card. Petitioner annually
                                      exceeded that amount. He traveled to European Tour tour-
                                      naments throughout Europe as well as Australia and the Far
                                      East. Petitioner became one of the most successful and pop-
                                      ular golfers on the European Tour. He ranked as the number
                                      one golfer on the European Tour’s money list in 2001 by
                                      earning the most prize money.
                                      Petitioner’s Golf Career in the United States
                                        Though popular on the European Tour, petitioner was
                                      unknown in the United States leading up to the years at
                                      issue. Petitioner rarely played in the United States, and he
                                      did not have a U.S. Professional Golf Association Tour (PGA
                                      Tour) card. He instead focused on maintaining his status and
                                      high ranking on the European Tour. Petitioner’s career took
                                      a dramatic upswing when he won the 2001 U.S. Open golf
                                      tournament in Tulsa, Oklahoma. The U.S. Open is one of
                                      four prestigious Major Championships in professional golf, 4
                                      and professional golfers are largely remembered for how they
                                        3 A professional golfer must obtain and maintain a tour card to play on a particular golf tour.

                                      Each golf tour has its own requirements for obtaining and maintaining a tour card that often
                                      include attending a tour school and participating in a certain number of tour tournaments each
                                      year.
                                        4 The other three Major Championships are the Masters, the British Open, and the PGA

                                      Championship.




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                                      550                136 UNITED STATES TAX COURT REPORTS                                         (547)


                                      perform in these tournaments. Petitioner’s profile sky-
                                      rocketed both in the United States and globally after winning
                                      the U.S. Open.
                                        Petitioner automatically obtained his PGA Tour card when
                                      he won the U.S. Open. He was required, as a member of the
                                      PGA Tour, to play at least 13 PGA Tour tournaments a year.
                                      Petitioner thereafter began to play in the United States more
                                      regularly to maintain his PGA Tour card. Petitioner was able
                                      to satisfy the tour card requirements of both the PGA and
                                      European Tours because many tournaments in which he
                                      played were classified as both PGA Tour tournaments and
                                      European Tour tournaments. Petitioner played in approxi-
                                      mately 36 tournaments a year during the years at issue,
                                      spending most of his time in the United States and Europe.
                                      IMG and Petitioner’s Financial Management
                                         Petitioner hired IMG World, Inc. (IMG), an international
                                      sports media entertainment group, to represent him and
                                      manage his career and finances. IMG was started in the
                                      1960s with a handshake between Attorney Mark McCormack
                                      and golf legend Arnold Palmer. IMG revolutionized sports
                                      marketing by promoting athletes for endorsement deals with
                                      sponsors. Sponsors paid to have the athlete’s name, face,
                                      image and likeness (name and likeness) associated with the
                                      sponsor. IMG’s approach allowed clients to be concerned only
                                      with playing their respective sports. IMG would take care of
                                      the rest. IMG therefore expanded its role from simply pro-
                                      moting its clients to managing all its clients’ business and
                                      personal affairs.
                                         IMG also included tax planning strategies as part of its
                                      financial planning for its clients. IMG developed a strategy for
                                      its clients that was intended to reduce their worldwide
                                      income taxes if they were U.K. residents like petitioner. This
                                      strategy was designed to keep certain income out of the
                                      United Kingdom. To effectuate this plan, IMG directed its
                                      U.K.-resident clients to enter into employment contracts with
                                      two IMG-controlled entities, European Sports Promotions
                                      Limited (ESP) and European Tournament Organizers Limited
                                      (ETO). All income from the clients’ sports-related activities or
                                      endorsements was directed to either an ESP (U.K. income) or




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                                      (547)                         GOOSEN v. COMMISSIONER                                           551


                                      an ETO (non-U.K. income) bank account in Liechtenstein. 5
                                      The clients’ endorsement earnings and prize winnings inside
                                      the United Kingdom were contracted and paid to ESP (U.K.
                                      income), and those outside the United Kingdom were con-
                                      tracted and paid to ETO (non-U.K. income). Each entity would
                                      issue the client a fixed annual salary and bonus. The client’s
                                      bonus would not be paid until the entity subtracted expenses,
                                      including the client’s salary, administrative fees and IMG
                                      management fees.
                                        Petitioner’s agent at IMG, Greg Kinnings (Mr. Kinnings),
                                      determined that petitioner would be a prime candidate for
                                      entering into employment agreements with ETO and ESP.
                                      Petitioner agreed to be employed by ESP and ETO. Petitioner’s
                                      golf-related earnings, including endorsement income, prize
                                      money and appearance fees, were directed to ETO for the non-
                                      U.K. income or ESP for the U.K. income. ETO (non-U.K.
                                      income) transferred petitioner’s salary and bonus to his
                                      Guernsey 6 bank account, and ESP (U.K. income) transferred
                                      petitioner’s salary and bonus to his London bank account.
                                      This structure ensured that petitioner’s U.K.-source income
                                      would be repatriated to the United Kingdom and his non-
                                      U.K.-source income would remain outside the United
                                      Kingdom. The U.K. tax authorities approved this employ-
                                      ment structure.
                                      Marketing of Petitioner’s Name and Likeness
                                        IMG also successfully marketed petitioner to sponsors
                                      during the years at issue. Petitioner entered, either directly
                                      or through ETO (non-U.K. income) or ESP (U.K. income), into
                                      several endorsement agreements and appearance agreements
                                      with sponsors. Endorsement agreements allow the sponsor to
                                      use the athlete’s name and likeness to advertise and promote
                                      the sponsor’s products for a specified period of time. Appear-
                                      ance agreements allow the sponsor to use the athlete’s name
                                      and likeness only in connection with the advertising and pro-
                                      motion of a specific tournament or event. Sponsors value an
                                      endorsement agreement based on the strength of an athlete’s
                                      brand or image and the sponsor’s ability to be associated
                                      with that brand or image. Sponsors consider the athlete’s rel-
                                        5 Liechtenstein is known for its financial secrecy laws and was considered a tax haven during

                                      the years at issue.
                                        6 Guernsey has also been considered a tax haven.




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                                      evance to a targeted market segment, the athlete’s perform-
                                      ance in his sport and the athlete’s personality and appear-
                                      ance. Moreover, sponsors generally look for athletes that
                                      carry themselves in a professional and moral manner on and
                                      off the playing field.
                                         Petitioner’s accomplishments on the golf course made him
                                      famous, though it was his image that made him marketable.
                                      Golf is often called ‘‘the gentleman’s game,’’ and many spon-
                                      sors see petitioner as one who epitomizes the gentleman
                                      golfer. Petitioner has maintained a positive image through-
                                      out his career. Sponsors appreciate his cool demeanor on the
                                      course, his golf success, his recognition around the world and
                                      his involvement in charities and other notable causes. He is
                                      often branded as ‘‘the Goose’’ because of his name or ‘‘Ice-
                                      man’’ because he is cool under pressure. 7
                                         Petitioner’s name and likeness have been marketed in
                                      South Africa and Europe since the 1990s. Sponsors began to
                                      aggressively market petitioner in the United States and
                                      increased his global marketing following his 2001 U.S. Open
                                      victory. Petitioner entered into or renegotiated six endorse-
                                      ment agreements during the years at issue. Petitioner
                                      entered into endorsement agreements with TaylorMade, Izod,
                                      Acushnet, Rolex, Upper Deck and Electronic Arts. These
                                      sponsors had global reach and were consistent with peti-
                                      tioner’s image and brand. The TaylorMade, Izod and
                                      Acushnet endorsement agreements (collectively, the on-
                                      course endorsement agreements) required petitioner to wear
                                      or use their products during golf tournaments. In contrast,
                                      the Rolex, Upper Deck and Electronic Arts endorsement
                                      agreements (collectively, the off-course endorsement agree-
                                      ments) did not have this requirement.
                                      TaylorMade Endorsement Agreement
                                        TaylorMade makes golf clubs and golf accessories,
                                      including golf bags and golf club head covers. Petitioner has
                                      used TaylorMade golf clubs his entire career because he con-
                                      siders TaylorMade golf clubs the best in the world. ETO and
                                      ESP each entered into a 4-year agreement with TaylorMade
                                      (collectively, TaylorMade agreements) in 2002. ETO (non-U.K.
                                      income) and ESP (U.K. income) licensed to TaylorMade
                                           7 These   nicknames were also associated with characters in the popular movie ‘‘Top Gun.’’




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                                      (547)                         GOOSEN v. COMMISSIONER                                           553


                                      the right to use petitioner’s name and likeness on
                                      TaylorMade golf apparel, equipment and accessories.
                                      The TaylorMade agreements required petitioner to wear
                                      TaylorMade clothing and headgear as well as to
                                      use TaylorMade golf clubs, golf club head covers and golf
                                      bags during tournaments and golf-related activities. Peti-
                                      tioner also had to provide two service days to pose for tele-
                                      vision commercials, for print advertising and for promotional
                                      materials as well as six personal appearance days to promote
                                      TaylorMade products at golf events. Petitioner further agreed
                                      to test and examine TaylorMade golf products.
                                         TaylorMade agreed to pay a $400,000 annual endorsement
                                      fee. The TaylorMade agreements attributed $300,000 of the
                                      $400,000 to ETO (non-U.K. income) and the remaining
                                      $100,000 to ESP (U.K. income). Petitioner had to complete
                                      two rounds of golf in a minimum of 20 PGA Tour tournaments
                                      and 11 European Tour tournaments per year to secure the
                                      TaylorMade endorsement fees. If he failed to play in the min-
                                      imum number of tournaments, the endorsement fees were
                                      prorated. Moreover, ETO and ESP would receive a bonus if
                                      petitioner won a specified golf tournament (tournament
                                      bonus) or achieved a specified ranking on the World Golf
                                      Rankings (ranking bonus). The bonus payments were to be
                                      allocated 25 percent to ESP (U.K. income) and 75 percent to
                                      ETO (non-U.K. income). The TaylorMade agreements did not
                                      explain the reason for this bonus allocation.
                                         TaylorMade reserved the right to terminate the
                                      TaylorMade agreements if petitioner committed any act that
                                      materially reduced the value of the TaylorMade agreements
                                      or violated public morality or decency (morals clause).
                                      TaylorMade further reserved the right to terminate
                                      the TaylorMade agreements if petitioner was convicted of
                                      any criminal offense or found to have possessed drugs or
                                      other illegal substances (illegal activities clause).
                                      Izod Endorsement Agreement
                                        Izod, an apparel company, sought petitioner to promote its
                                      men’s golf apparel line. ETO and ESP each entered into a 3-
                                      year endorsement agreement with Izod (collectively, the Izod
                                      agreements) in 2001. ETO (non-U.K. income) and ESP (U.K.
                                      income) licensed to Izod the right to use petitioner’s name




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                                      and likeness on Izod apparel and accessories. The Izod agree-
                                      ments required petitioner to wear Izod products exclusively
                                      when engaged in golf tournaments and other golf-related
                                      activities and to provide two international appearance days
                                      of up to six hours each on behalf of Izod.
                                         Izod agreed to pay ETO (non-U.K. income) a $33,750
                                      endorsement fee for 2002 and $37,500 endorsement fee for
                                      2003. Izod agreed to pay ESP (U.K. income) an $11,250
                                      endorsement fee for 2002 and a $12,500 endorsement fee for
                                      2003. The endorsement fees would be prorated based on tour-
                                      naments played if petitioner failed to compete in 18 PGA or
                                      European Tour tournaments per year. ETO (non-U.K. income)
                                      and ESP (U.K. income) were eligible to receive tournament
                                      bonuses and ranking bonuses under the Izod agreements.
                                      The total bonus payments were allocated 25 percent to ESP
                                      (U.K. income) and 75 percent to ETO (non-U.K. income). The
                                      Izod agreements did not explain the reason for this bonus
                                      allocation. The Izod agreements also contained a morals
                                      clause and an illegal activities clause.
                                      Acushnet Endorsement Agreement
                                         Acushnet manufactures various sports merchandise,
                                      including Titleist brand golf balls and golf gloves. Petitioner
                                      has used Acushnet products for most of his golfing career.
                                      Petitioner directly entered into a 2-year endorsement agree-
                                      ment with Acushnet (Acushnet agreement) following his win
                                      at the 2001 U.S. Open. Petitioner licensed to Acushnet the
                                      right to use his name and likeness in connection with its
                                      advertisement, promotion and sale of Titleist golf balls and
                                      golf gloves. Petitioner also agreed to play with Titleist golf
                                      balls and golf gloves in all golf tournaments, exhibitions,
                                      clinics and other events worldwide. Petitioner agreed to
                                      participate in four days of public relations activities as well
                                      as television commercials for advertising and promoting
                                      Acushnet products. The Acushnet agreement also required
                                      petitioner to develop and test Acushnet golf products.
                                         Acushnet agreed to pay petitioner a $350,000 endorsement
                                      fee for 2002 and a $375,000 endorsement fee for 2003, plus
                                      tournament bonuses and rankings bonuses. The endorsement
                                      fee would be prorated if petitioner failed to compete in 20
                                      PGA or European Tour tournaments per year. Petitioner




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                                      (547)                         GOOSEN v. COMMISSIONER                                           555


                                      thereafter authorized ESP and ETO to invoice and collect all
                                      monies due under the Acushnet agreement for all U.K. and
                                      non-U.K. activities. Petitioner directed that 25 percent of the
                                      endorsement fees and bonuses from Acushnet be allocated to
                                      ESP (U.K. income) and 75 percent be allocated to ETO (non-
                                      U.K. income).
                                      Rolex Endorsement Agreement
                                         Rolex is a Swiss manufacturer of luxury timepieces. Peti-
                                      tioner directly entered into a 3-year endorsement agreement
                                      with Rolex in 2001 (Rolex agreement). Petitioner licensed to
                                      Rolex the right to use his name and likeness in any medium
                                      in connection with the advertisement, promotion and sale of
                                      Rolex timepieces worldwide. The Rolex agreement did not
                                      require petitioner to take part in any golfing activities. It did
                                      require, however, petitioner to use all reasonable efforts to
                                      wear a Rolex timepiece when featured in any medium or
                                      when appearing in public engagements worldwide. He also
                                      agreed to be reasonably available for interviews, photographs
                                      or films relating to Rolex’s products.
                                         Rolex agreed to pay a $50,000 annual endorsement fee to
                                      petitioner. Petitioner thereafter authorized ESP and ETO to
                                      invoice and collect all monies due under the Rolex agree-
                                      ment. Petitioner asked that 25 percent of the endorsement
                                      fees from Rolex be allocated to ESP (U.K. income) and 75 per-
                                      cent be allocated to ETO (non-U.K. income).
                                      Upper Deck Endorsement Agreement
                                         Upper Deck is an international sports and entertainment
                                      products company that produces golf trading cards. Peti-
                                      tioner entered into a 14-month letter agreement with Upper
                                      Deck in 2001 (Upper Deck agreement). Petitioner licensed to
                                      Upper Deck the right to use his name and likeness world-
                                      wide in connection with the production, marketing, adver-
                                      tising, promotion and sale of Upper Deck’s golf trading cards.
                                      Petitioner agreed to sign 3,500 trading cards per year as well
                                      as provide five shirts, five pairs of gloves, two hats and one
                                      golf bag, each of which he used during practice or in a golf
                                      tournament.
                                         Upper Deck agreed to pay petitioner a $42,500 endorse-
                                      ment fee. Half of the endorsement fee was paid within 30




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                                      days of executing the agreement, and the remaining 50 per-
                                      cent was paid 30 days after petitioner performed all required
                                      services under the agreement. He authorized ESP and ETO to
                                      invoice and collect all monies due under the Upper Deck
                                      agreement. The Upper Deck agreement contained a morals
                                      clause and an illegal activities clause.
                                      Electronic Arts Endorsement Agreement
                                        Electronic Arts develops, markets and distributes video
                                      games, including Tiger Woods PGA Tour, a series of golf video
                                      games. ETO and ESP each entered into a 3-year endorsement
                                      agreement with Electronic Arts in 2003 (collectively, the
                                      Electronic Arts agreements). ETO (non-U.K. income) and ESP
                                      (U.K. income) licensed to Electronic Arts the right to use
                                      petitioner’s name and likeness in its software products,
                                      including Tiger Woods PGA Tour 2004 (the video game). The
                                      territory of ETO’s license to Electronic Arts (ETO-Electronic
                                      Arts agreement) was worldwide, except for the United
                                      Kingdom. The territory of ESP’s license to Electronic Arts
                                      (ESP-Electronic Arts agreement) was the United Kingdom.
                                      The ETO Electronic Arts agreement required petitioner to
                                      provide two 4-hour product development sessions and to pro-
                                      vide nine photographs to enable Electronic Arts to recreate
                                      petitioner’s likeness. The ESP-Electronic Arts agreement did
                                      not contain any service requirement.
                                        Electronic Arts agreed to pay ETO $22,500 upon signing the
                                      ETO-Electronic Arts agreement and $11,250 on or before
                                      January 1, 2004. Electronic Arts agreed to pay ESP (U.K.
                                      income) $7,500 upon signing the ESP-Electronic Arts agree-
                                      ment and $3,750 on or before January 1, 2004.
                                      U.S. Income Taxes and Returns
                                         MAI Wealth Advisors (MAI) prepared and filed for petitioner
                                      nonresident alien Federal income tax returns for the years at
                                      issue. MAI is owned by principals of IMG. MAI manages the
                                      financial affairs of athletes and other high-net-worth individ-
                                      uals. MAI treated petitioner as having received the endorse-
                                      ment income directly from the sponsors, rather than from
                                      ETO or ESP.
                                         Petitioner reported all prize money from golf tournaments
                                      and appearance fees in the United States as effectively con-




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                                      (547)                         GOOSEN v. COMMISSIONER                                           557


                                      nected income taxable in the United States. Petitioner
                                      characterized his endorsement fees and bonuses from the on-
                                      course endorsements as 50 percent royalty income and 50
                                      percent personal services income. Petitioner reported his on-
                                      course endorsement fees and tournament bonuses as 3.4 per-
                                      cent U.S.-source royalty income. He sourced the personal
                                      services income from the on-course endorsement fees and
                                      tournament bonuses to the United States based on the
                                      number of days he played inside the United States over
                                      the total days he played golf for the year. Petitioner sourced
                                      the personal services income portion of his ranking bonuses
                                      from the on-course endorsement agreements based on a ratio
                                      of his U.S. prize winnings to his worldwide prize winnings.
                                        Petitioner characterized his endorsement fees from the off-
                                      course endorsement agreements as 100 percent royalty
                                      income. Petitioner reported 6.8 percent of endorsement fees
                                      from Rolex and Electronic Arts as U.S.-source royalty income
                                      and 9.1 percent of the payments from Upper Deck as U.S.-
                                      source royalty income. 8
                                        Respondent audited petitioner’s returns and mailed him
                                      the deficiency notice. Respondent allocated the endorsement
                                      fees generated from the on-course endorsement agreements
                                      based on the number of U.S. tournaments petitioner played
                                      in comparison to the number of worldwide tournaments he
                                      played. Respondent allocated all tournament bonuses from
                                      tournaments played in the United States to the United
                                      States. Respondent allocated the ranking bonuses based on
                                      the ratio of U.S. prize money to worldwide prize winnings.
                                      Respondent agreed that petitioner’s income from the off-
                                      course endorsement agreements was royalty income.
                                      Respondent determined, however, that 25 percent of the roy-
                                      alty income should be U.S.-source income rather than the
                                      less than 10 percent U.S.-source income petitioner reported.
                                      Respondent determined based on these adjustments that
                                      petitioner underreported taxable income for the years at
                                      issue.
                                        Petitioner timely filed a petition challenging respondent’s
                                      determinations. The parties have been able to resolve some
                                        8 Petitioner contends he calculated his royalty income percentages using a 12-market model,

                                      which allocated 25 percent of the endorsement fees to the United Kingdom and 75 percent of
                                      the endorsement fees evenly among 11 other world markets. He has provided few details of the
                                      11 other world markets or how this calculation works.




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                                      558                136 UNITED STATES TAX COURT REPORTS                                         (547)


                                      issues but they still dispute the deficiency amounts as they
                                      relate to the on-course and off-course endorsement agree-
                                      ments. The parties stipulated that any income from the on-
                                      course endorsement agreements characterized as personal
                                      services income should be sourced 41.7241 percent to the
                                      United States for 2002 and 42.7397 percent to the United
                                      States for 2003. The parties also stipulated that all tour-
                                      nament bonus income is U.S.-source and all ranking bonus
                                      income is U.S.-source based on the ratio of U.S. prize
                                      winnings to worldwide prize winnings.

                                                                                  OPINION

                                        We are asked to decide how petitioner, a U.K. resident,
                                      should characterize and source the income he received under
                                      the worldwide endorsement agreements for U.S. tax pur-
                                      poses. Petitioner contends that the sponsors paid the
                                      endorsement income primarily for the right to use his name
                                      and likeness, not for any services he may have provided. He
                                      argues that the endorsement income should therefore be
                                      taxed as U.S.-source royalty income. Respondent counters
                                      that the sponsors paid him the endorsement income pri-
                                      marily for personal services and therefore such income
                                      should be taxed as U.S.-source personal services income. The
                                      parties also dispute whether petitioner is eligible for any
                                      benefits under the U.S.-U.K. tax treaties. We begin by exam-
                                      ining the burden of proof.
                                      I.    Burden of Proof
                                         In general, the Commissioner’s determinations in the defi-
                                      ciency notice are presumed correct, and the taxpayer has the
                                      burden of proving that the Commissioner’s determinations
                                      are in error. See Rule 142(a); 9 Welch v. Helvering, 290 U.S.
                                      111, 115 (1933). The burden of proof may shift to the
                                      Commissioner in certain situations. Sec. 7491(a)(2)(A) and
                                      (B). Petitioner does not argue nor do we find that the burden
                                      of proof has shifted to respondent.


                                        9 All section references are to the Internal Revenue Code (Code) in effect for the years at issue,

                                      and all Rule references are to the Tax Court Rules of Practice and Procedure, unless otherwise
                                      indicated.




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                                      (547)                          GOOSEN v. COMMISSIONER                                           559


                                      II.       Taxation of Nonresident Aliens Under the Code
                                        We now consider how petitioner’s endorsement income
                                      should be taxed in the United States. The United States gen-
                                      erally taxes nonresident aliens only if they engage in a U.S.
                                      trade or business or receive U.S.-source fixed and deter-
                                      minable annual or periodic income. See sec. 864(b). Engaging
                                      in a U.S. trade or business includes any business activity in
                                      the United States that involves one’s own physical presence.
                                      See sec. 1.864–2, Income Tax Regs. The parties agree that
                                      petitioner’s golf play in the United States amounts to his
                                      engaging in a U.S. trade or business. We must therefore
                                      determine the character and source of the income and
                                      whether such income was effectively connected with his golf
                                      play in the United States. We will consider each issue in
                                      turn. We begin by considering the character of the income.
                                           A.     Character of Income—Personal Services Income or
                                                  Royalties
                                         We first decide whether the endorsement income con-
                                      stitutes personal services income or royalty income. The par-
                                      ties agree that the endorsement fees under the off-course
                                      endorsement agreements constitute royalty income. We will
                                      therefore examine endorsement income only from the on-
                                      course endorsement agreements, which include the
                                      TaylorMade, Izod and Acushnet agreements.
                                         Petitioner asserts that the sponsors paid him for the right
                                      to co-market and co-brand their products with petitioner’s
                                      name and likeness. Courts have repeatedly characterized
                                      payments for the right to use a person’s name and likeness
                                      as royalties because the person has an ownership interest in
                                      the right. See Cepeda v. Swift & Co., 415 F.2d 1205 (8th Cir.
                                      1969); Haelan Lab., Inc. v. Topps Chewing Gum, Inc., 202
                                      F.2d 866 (2d Cir. 1953); cf. Boulez v. Commissioner, 83 T.C.
                                      584 (1984) (intellectual property creator receives only per-
                                      sonal services income if the creator lacks an ownership
                                      interest in the underlying property); Kramer v. Commis-
                                      sioner, 80 T.C. 768 (1983); Uhlaender v. Hendricksen, 316 F.
                                      Supp. 1277 (D. Minn. 1970). Petitioner submitted an expert
                                      report from Jim Baugh (Mr. Baugh), former president of Wil-
                                      son Sporting Goods, to support his contention that
                                      TaylorMade, Izod and Acushnet paid for his name and like-




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                                      560                136 UNITED STATES TAX COURT REPORTS                                         (547)


                                      ness rather than for the performance of services. Mr. Baugh
                                      has spent more than 35 years in sports marketing and has
                                      extensive experience in professional athlete endorsement
                                      agreements.
                                         Respondent argues that the sponsors primarily paid peti-
                                      tioner to perform personal services. Respondent argues that
                                      the personal services petitioner was required to perform
                                      included playing golf and carrying or wearing the sponsors’
                                      products. Respondent relies on this personal services argu-
                                      ment by focusing on the proration of the endorsement fees if
                                      petitioner failed to play in a specific number of golf tour-
                                      naments. Respondent claims that any income received for the
                                      use of petitioner’s name and likeness should be considered de
                                      minimis.
                                         The characterization of petitioner’s on-course endorsement
                                      fees and bonuses depends on whether the sponsors primarily
                                      paid for petitioner’s services, for the use of petitioner’s name
                                      and likeness, or for both. See Or. State Univ. Alumni
                                      Association v. Commissioner, 193 F.3d 1098 (9th Cir. 1999),
                                      affg. T.C. Memo. 1996–34; Boulez v. Commissioner, supra;
                                      Kramer v. Commissioner, supra. We must divine the intent
                                      of the sponsors and of petitioner from the entire record,
                                      including the terms of the specific endorsement agreement.
                                      See Ark. State Police Association, Inc. v. Commissioner, 282
                                      F.3d 556, 560 (8th Cir. 2002).
                                         The on-course endorsement agreements granted sponsors
                                      TaylorMade, Izod and Acushnet the right to use petitioner’s
                                      name and likeness for advertising and promotional materials
                                      worldwide. Petitioner also agreed to wear or use the spon-
                                      sors’ products, make promotional appearances and partici-
                                      pate in photo and filming days. The sponsors paid petitioner
                                      a base endorsement fee, though the fee would be prorated if
                                      he did not play in a specified number of tournaments. The
                                      sponsors also paid petitioner tournament and ranking
                                      bonuses based on his on-course performance. The endorse-
                                      ment agreements fail to allocate the endorsement income
                                      between services petitioner was to provide and the amount
                                      paid for the right to use petitioner’s name and likeness. As
                                      we view the record as a whole, we find that the sponsors paid
                                      for both the services provided and the right to use peti-
                                      tioner’s name and likeness.




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                                      (547)                         GOOSEN v. COMMISSIONER                                           561


                                         The record shows that petitioner’s name and his associated
                                      international reputation had a value beyond his golf skills
                                      and abilities. See Kramer v. Commissioner, supra. Petitioner
                                      spent many years developing his image. He started in South
                                      Africa, and then he flourished in the European Tour. He was
                                      one of the top professional golfers and was recognizable
                                      worldwide.
                                         Charles Prestagacio (Mr. Prestagacio), Senior Vice Presi-
                                      dent of Global Sports Marketing for TaylorMade, testified
                                      that TaylorMade paid petitioner to appear at tournaments as
                                      well as to use his name and likeness in connection with its
                                      products. He stated that TaylorMade viewed petitioner not
                                      only as a golfer, but as a brand ambassador. TaylorMade val-
                                      ued its endorsement agreement with petitioner because it
                                      appreciated petitioner’s image. TaylorMade wanted to be
                                      associated with his cool and professional persona. Mr.
                                      Prestagacio stated that TaylorMade marketed petitioner’s
                                      image globally, year round. TaylorMade, as well as the other
                                      on-course endorsement sponsors, co-branded their products
                                      with petitioner in magazine and newspaper advertisements,
                                      promotional materials and television commercials distributed
                                      all over the world. TaylorMade was paying for petitioner’s
                                      image. He was not paid per advertisement or news clipping.
                                      Moreover, he played in golf tournaments all over the world
                                      to ensure he complied with his tour card requirements, not
                                      to earn endorsement fees per se.
                                         Acushnet and Izod even included a morals clause and an
                                      illegal activities clause in their respective endorsement
                                      agreements to terminate the agreements if petitioner com-
                                      promised his image. Mr. Baugh cited the rise and fall of
                                      Tiger Woods (Mr. Woods) as an endorser to illustrate the
                                      importance sponsors place on an athlete’s image. Mr. Woods
                                      built the most powerful, valuable and carefully orchestrated
                                      brand and image in sports. He lost most of his sponsorships,
                                      however, when his extra-marital affairs made front page
                                      news. Sponsors determined that Mr. Woods’ image was no
                                      longer compatible with their products.
                                         Mr. Baugh’s report also stated that an athlete’s image is
                                      often more important than an athlete’s performance on the
                                      course. Mr. Baugh highlighted the contrast between
                                      TaylorMade’s on-course endorsements with petitioner and
                                      those with Sergio Garcia (Mr. Garcia). Petitioner ranked




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                                      562                136 UNITED STATES TAX COURT REPORTS                                         (547)


                                      either near or higher than Mr. Garcia on the PGA Tour and
                                      World Golf Rankings during the years at issue. Petitioner
                                      had won a Major Championship as well as several high-pro-
                                      file tournaments on the European Tour. In contrast, Mr.
                                      Garcia had failed to win a Major Championship and had few
                                      significant wins. Despite this difference in golf performance,
                                      both petitioner and Mr. Garcia entered into substantially
                                      similar endorsement agreements with TaylorMade. In addi-
                                      tion, Mr. Garcia was paid substantially more than petitioner
                                      despite his lesser record. TaylorMade valued Mr. Garcia’s
                                      flash, looks and maverick personality more than petitioner’s
                                      cool, ‘‘Iceman’’ demeanor. We find that TaylorMade, Izod and
                                      Acushnet valued petitioner’s image, and they paid substan-
                                      tial money for the right to use his name and likeness.
                                         The record also shows that the sponsors valued petitioner’s
                                      play at tournaments. Petitioner agreed to make promotional
                                      appearances at tournaments and to wear or use the sponsors’
                                      products. Moreover, the sponsors conditioned the full
                                      endorsement fee on petitioner’s playing in a specified number
                                      of tournaments. Otherwise, the sponsors would prorate his
                                      endorsement fees. The sponsors could use petitioner’s image
                                      in all of their advertising campaigns worldwide, but the
                                      sponsors would pay petitioner only if he played golf. His
                                      tournament bonuses were based solely on how he performed
                                      in specific tournaments. If he performed well throughout the
                                      year, he could receive a ranking bonus. We find that the
                                      performance of services requirement was not de minimis or
                                      ancillary to the use of his name and likeness. Accordingly, we
                                      find that the income received from the on-course endorse-
                                      ment agreements was part royalty income and part personal
                                      services income.
                                         We find it appropriate to allocate the endorsement fees
                                      from the on-course endorsements between personal services
                                      income and royalty income. While we recognize that precision
                                      in making such an allocation is unattainable, we must do the
                                      best we can with the evidence presented. Kramer v. Commis-
                                      sioner, supra; see DeMink v. United States, 448 F.2d 867, 870
                                      (9th Cir. 1971); Commissioner v. Ferrer, 304 F.2d 125, 135
                                      (2d Cir. 1962), revg. 35 T.C. 617 (1961); Ditmars v. Commis-
                                      sioner, 302 F.2d 481, 488 (2d Cir. 1962), revg. T.C. Memo.
                                      1961–105. We must examine all the surrounding facts and
                                      circumstances. Kramer v. Commissioner, supra. The sponsors




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                                      (547)                         GOOSEN v. COMMISSIONER                                           563


                                      paid for the right to use petitioner’s name and likeness and
                                      to be associated with his image. Petitioner’s endorsement
                                      income depended, however, on his playing in tournaments.
                                      The record shows that the performance of services and the
                                      use of name and likeness were equally important. We find
                                      that 50 percent of the endorsement fees petitioner received
                                      represented royalty income and 50 percent represented per-
                                      sonal services income.
                                           B.    Sourcing and Effectively Connected Income
                                         We must next determine what portion of the endorsement
                                      income should be sourced to the United States. We accept the
                                      parties’ stipulations for sourcing the personal services
                                      income, tournament bonuses and ranking bonuses to the
                                      United States. The parties disagree as to what portion of the
                                      royalty income from the on-course and off-course endorse-
                                      ment fees should be U.S.-source income. We first consider
                                      what portion of the royalty income is U.S.-source income. We
                                      then consider whether any U.S.-source royalty income was
                                      effectively connected to a U.S. trade or business.
                                           1.   Sourcing Petitioner’s Royalties
                                         Royalty income paid for the right to use intangible prop-
                                      erty generally is sourced where the property is used or is
                                      granted the privilege of being used. Secs. 861(a)(4), 862(a)(4).
                                      For example, royalty income received for the use of trade-
                                      marks in making foreign sales is sourced outside the United
                                      States. Rev. Rul. 68–443, 1968–2 C.B. 304. Thus, we must
                                      consider where petitioner’s name and likeness were used or
                                      would be used to determine the source of petitioner’s royalty
                                      income.
                                         Taxpayers must make an appropriate sourcing allocation if
                                      the royalty income relates to the right to use property both
                                      within and outside the United States. The contracting parties
                                      to the transaction have the burden of making a reasonable
                                      allocation of the royalty income between the U.S. and foreign
                                      sources. Here, petitioner granted his sponsors the right to
                                      use his name and likeness worldwide. The contracting par-
                                      ties agreed to source 25 percent to the United Kingdom and
                                      75 percent to the rest of the world. The contracting parties
                                      did not specify, however, how the income should be sourced




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                                      564                136 UNITED STATES TAX COURT REPORTS                                         (547)


                                      to the United States. We therefore cannot accept their
                                      sourcing allocation for purposes of determining U.S.-source
                                      royalty income.
                                         Courts have generally allocated all the royalty income to
                                      the United States if the contracting parties failed to make a
                                      reasonable allocation, unless the taxpayer can show there is
                                      a sufficient basis for allocating the income between U.S. and
                                      foreign sources. See Misbourne Pictures Ltd. v. Johnson, 189
                                      F.2d 774, 775 (2d Cir. 1951); Molnar v. Commissioner, 156
                                      F.2d 924 (2d Cir. 1946), affg. a Memorandum Opinion of this
                                      Court; Rohmer v. Commissioner, 153 F.2d 61, 65 (2d Cir.
                                      1946), affg. 5 T.C. 183 (1945). A sufficient basis exists when
                                      a taxpayer establishes that he or she has property rights out-
                                      side the United States and furnishes evidence on the value
                                      of those rights. See Wodehouse v. Commissioner, 178 F.2d
                                      987 (4th Cir. 1949), affg. in part and revg. in part 8 T.C. 637
                                      (1947).
                                         Petitioner has established that he owns the rights to his
                                      name and likeness outside the United States and that those
                                      rights have value. We must therefore determine the value of
                                      those rights by examining where the sponsors actually used
                                      petitioner’s name and likeness. Petitioner’s name and like-
                                      ness were used in magazine and newspaper advertisements,
                                      commercials, websites and other promotional materials. The
                                      parties have presented little statistical evidence on the use
                                      of petitioner’s name and likeness. This does not absolve us,
                                      however, from valuing rights merely because there is dif-
                                      ficulty in fixing their value. Id. We therefore consider the evi-
                                      dence to make the reasonable sourcing allocation.
                                           a. Upper Deck and Electronic Arts Endorsement Fees
                                        We first consider sourcing petitioner’s royalty income from
                                      Upper Deck and Electronic Arts. The record reflects that
                                      Upper Deck sold 92 percent of its golf cards in the United
                                      States and eight percent outside the United States. The
                                      record reflects that Electronic Arts sold 70 percent of the
                                      video games in the United States and 30 percent of the video
                                      games outside the United States. The parties do not dispute
                                      these sales figures.
                                        We recognize that product sales do not necessarily reflect
                                      the relative worldwide value of the intangible rights. See




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                                      (547)                         GOOSEN v. COMMISSIONER                                           565


                                      Molnar v. Commissioner, supra; Rohmer v. Commissioner,
                                      supra. Here, however, the golf card and video game sales
                                      appear to indicate where Upper Deck and Electronic Arts
                                      used petitioner’s name and likeness. Petitioner added value
                                      to both Upper Deck’s and Electronic Arts’ international sales
                                      because he was a citizen of South Africa, resided in England
                                      and played worldwide. The record shows, however, that the
                                      golf cards and the video game were primarily marketed in
                                      the United States. Petitioner’s name and likeness also were
                                      valued greatly in the United States following his 2001 U.S.
                                      Open win.
                                         Moreover, petitioner’s name and likeness value was inex-
                                      tricably tied to the sales of the video game and golf cards.
                                      Petitioner’s endorsement agreement granted Electronic Arts
                                      the right to use petitioner’s name and likeness only with the
                                      video game, and not in advertising or other promotional
                                      materials. The parties agree that Upper Deck’s golf card
                                      sales, rather than its use of petitioner’s name and likeness
                                      in advertising and promotional material, should be a deter-
                                      mining factor in sourcing the Upper Deck endorsement fees.
                                      We agree.
                                         We find that the sale of the trading cards and video game
                                      provide a sufficient basis for determining where Upper Deck
                                      and Electronic Arts used petitioner’s name and likeness
                                      rights. We therefore find that petitioner’s royalty income
                                      from Upper Deck is 92 percent U.S.-source income and Elec-
                                      tronic Arts is 70 percent U.S.-source income.
                                           b. On-Course and Rolex Endorsement Fees
                                        We next consider whether the parties presented sufficient
                                      evidence to value petitioner’s royalty income under the on-
                                      course and Rolex endorsement agreements. Petitioner, Mr.
                                      Kinnings and Mr. Prestagacio all testified that petitioner was
                                      marketed aggressively in the United States following his
                                      2001 U.S. Open victory. Petitioner testified that the United
                                      Kingdom, United States and South Africa were his three
                                      largest markets for golf endorsements. We find perplexing,
                                      however, that he allocated 25 percent of his royalty income
                                      to the United Kingdom and only 6.4 percent of his royalty
                                      income to the United States. On the evidence presented, we




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                                      566                136 UNITED STATES TAX COURT REPORTS                                         (547)


                                      cannot accept petitioner’s contention that less than seven
                                      percent of his royalty income is U.S.-source income.
                                         We look to the rest of the facts. Petitioner has shown that
                                      the sponsors paid for the right to use petitioner’s name and
                                      likeness outside the United States. Petitioner has dem-
                                      onstrated that he had a global image and that he was mar-
                                      keted all over the world. His market includes the United
                                      Kingdom, the United States, South Africa, Australia and the
                                      Far East. Thus, it would be unreasonable to source all the
                                      royalties to the United States. Petitioner testified that the
                                      United States is the largest golf market in the world, and it
                                      is one of his largest markets for golf endorsements. Taking
                                      into account all the evidence, it is our best judgment and we
                                      so find that 50 percent of the royalty income petitioner
                                      received from the on-course and Rolex endorsement agree-
                                      ments is U.S.-source income.
                                           2.   Effectively Connected Income
                                         We next consider whether such U.S.-source income is effec-
                                      tively connected with a U.S. trade or business. The parties
                                      agree that petitioner engaged in the U.S. trade or business
                                      of playing golf. A nonresident alien engaged in a U.S. trade
                                      or business is taxed on income that is effectively connected
                                      with the conduct of that trade or business. Sec. 882(a)(1). We
                                      apply different rules depending on whether the income is
                                      U.S.-source income or not U.S.-source income. In the case of
                                      U.S.-source income that is effectively connected with a U.S.
                                      trade or business, a nonresident alien will be subject to the
                                      graduated tax rates applicable to U.S. residents. In the case
                                      of U.S.-source income that is not effectively connected with
                                      a U.S. trade or business and consists of rents, dividends,
                                      royalties or other fixed or determinable annual or periodic
                                      income, the nonresident alien will be subject to a flat 30-per-
                                      cent withholding tax. The parties do not argue, nor do we
                                      find, that petitioner maintained an office or fixed place of
                                      business in the United States. We therefore find that peti-
                                      tioner is not subject to U.S. tax on his income that is not
                                      from U.S. sources.
                                         The parties also do not dispute that petitioner’s personal
                                      services were effectively connected with petitioner’s golf play
                                      and that the U.S.-source income earned playing golf is taxed




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                                      (547)                         GOOSEN v. COMMISSIONER                                            567


                                      at regular graduated rates. We must still determine whether
                                      petitioner’s U.S.-source royalty income is effectively con-
                                      nected with his U.S. trade or business. U.S.-source royalty
                                      income will be effectively connected with a U.S. trade or
                                      business if the activities of the trade or business are a mate-
                                      rial factor in realizing the royalty income. Sec. 1.864–
                                      4(c)(3)(i), Income Tax Regs. 10 We will consider separately the
                                      U.S.-source royalty income petitioner received under the on-
                                      course endorsement agreements and that under the off-
                                      course endorsement agreements.
                                         We first consider whether petitioner’s U.S.-source royalty
                                      income from the on-course endorsement agreements was
                                      effectively connected with his golf play in the United States.
                                      As we previously discussed, petitioner’s income from the use
                                      of his name and likeness depended on whether he played in
                                      a specified number of golf tournaments. In other words, peti-
                                      tioner’s participation in a golf tournament was material to
                                      receiving income for the use of his name and likeness. We
                                      therefore find that such income is effectively connected with
                                      a U.S. trade or business, and petitioner will be subject to the
                                      graduated tax rates applicable to U.S. residents.
                                         We next consider whether petitioner’s U.S.-source royalty
                                      income from the off-course endorsement agreements was
                                      effectively connected with a U.S. trade or business. The
                                      income petitioner received from the off-course endorsement
                                      agreements did not depend on whether he played in any golf
                                      tournaments. He would be paid regardless of whether he
                                      played in or won any tournament. Moreover, the off-course
                                      endorsement agreements did not require petitioner to be
                                      physically present in the United States. We therefore find
                                      that the income petitioner received from off-course endorse-
                                      ment agreements was not effectively connected with a U.S.
                                      trade or business. See sec. 1.864–4(c)(3)(ii), Example (2),
                                      Income Tax Regs. Accordingly, a flat 30-percent tax is
                                      imposed on petitioner’s gross U.S.-source royalty income from
                                      the off-course endorsement agreements. See secs. 881(a),
                                      871(a)(1).


                                        10 There is also an asset test in sec. 864(c)(2), not relevant here. Sec. 1.864–4(c)(2)(i), (3)(i),

                                      Income Tax Regs.




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                                      568                136 UNITED STATES TAX COURT REPORTS                                         (547)


                                      III.     Effect of U.S.–U.K. Tax Treaties
                                         We finally consider whether petitioner benefits from the
                                      U.S.–U.K. tax treaties. The fundamental purpose of a tax
                                      treaty is to avoid the uncoordinated taxation of an individ-
                                      ual’s income by two different countries. Tax treaties seek to
                                      avoid double taxation as well as prevent fiscal evasion. The
                                      Code applies with due regard to any applicable treaty obliga-
                                      tion of the United States. Sec. 894(a)(1). We therefore con-
                                      sider whether petitioner would receive any benefits under
                                      the U.S.-U.K. tax treaties that he did not receive under the
                                      Code.
                                         The U.S.-U.K. tax treaties provide that the United
                                      Kingdom will tax a U.K. resident non-domiciliary on non-
                                      U.K. source income only to the extent the income is remitted
                                      to or received in the United Kingdom. See 1975 U.S.-U.K. tax
                                      treaty art. IV(5); 2001 U.S.-U.K. tax treaty art. I(7). In such
                                      a case, the United States may not subject the U.K. resident
                                      to tax on specified kinds of income to avoid double taxation.
                                      Petitioner may therefore benefit from the U.S.-U.K. tax trea-
                                      ties regarding payments made to ESP (U.K. income) and ETO
                                      (non-U.K. income) that were remitted to or received in the
                                      United Kingdom. The parties agree that the endorsement
                                      income ETO (non-U.K. income) received was not remitted to
                                      or received in the United Kingdom. Petitioner argues, how-
                                      ever, that he should benefit from the U.S.-U.K. tax treaties
                                      to the extent ESP (U.K. income) remitted his salary and
                                      bonuses to his U.K. bank account.
                                         We now consider whether petitioner’s endorsement income
                                      was remitted to or received in the United Kingdom. Peti-
                                      tioner’s sponsors wired their payments to ESP’s (U.K. income)
                                      bank account in Liechtenstein. In addition to his endorse-
                                      ment income, ESP (U.K. income) received on petitioner’s
                                      behalf significant amounts of prize money, bonuses, non-U.S.
                                      royalties and appearance fees. ESP (U.K. income) paid peti-
                                      tioner a salary and a bonus that were based on the total
                                      amount deposited into the ESP (U.K. income) bank account in
                                      Liechtenstein. Petitioner submitted statements from his U.K.
                                      bank account showing transfers from ESP (U.K. income) into
                                      his U.K. bank account of £495,206 in 2002 and £12,500 in
                                      2003. Petitioner has not established, however, whether these
                                      salary and bonus payments constitute endorsement income




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                                      (547)                         GOOSEN v. COMMISSIONER                                           569


                                      or another type of income. We find no evidence in the record
                                      that any or all of the income received into the account was
                                      endorsement income paid by TaylorMade, Izod, Acushnet,
                                      Upper Deck, Electronic Arts or Rolex.
                                        Petitioner has failed to meet his burden of proving that
                                      endorsement income ESP (U.K. income) received on his behalf
                                      has been remitted to or received in the United Kingdom. As
                                      such, petitioner is not eligible for benefits under the U.S.-
                                      U.K. tax treaties.
                                      IV.      Conclusion
                                         In sum, we find that petitioner received 50 percent royal-
                                      ties and 50 percent personal services income under the on-
                                      course endorsements. We also find that 50 percent of the roy-
                                      alty income petitioner received under the on-course endorse-
                                      ment agreements and the Rolex agreement is U.S.-source
                                      income, 92 percent of the royalty income petitioner received
                                      under the Upper Deck endorsement agreement is U.S.-source
                                      income and 70 percent of the royalty income received under
                                      the Electronic Arts agreement is U.S.-source income. Peti-
                                      tioner has not shown that he is eligible for any treaty bene-
                                      fits.
                                         We have considered all arguments made in reaching our
                                      decision, and, to the extent not mentioned, we conclude that
                                      they are moot, irrelevant or without merit.
                                         To reflect the foregoing,
                                                                         Decision will be entered under Rule 155.

                                                                               f




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