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In advancing their respective arguments regarding the nature
of the claim petitioner had against CMS and the characterization
of the payment here under consideration, neither party relies
entirely upon the express language of the agreement, no doubt due
to the manner in which it was drafted. Not unlike releases we
have examined in other cases involving the application of section
104(a)(2), the agreement is all encompassing, covering all
contract and tort claims that petitioner potentially had against
CMS. In such situations, we look to the intent of the payer in
order to determine whether the provisions of section 104(a)(2)
are applicable, Knuckles v. Commissioner, 349 F.2d 610, 613 (10th
Cir. 1965), affg. T.C. Memo. 1964-33; Agar v. Commissioner, 290
F.2d 283 (2d Cir. 1961), affg. per curiam T.C. Memo. 1960-21, and
focus upon the May 1990 meeting between petitioner and Mr.
Griffin that apparently formed the basis for the agreement and
the payment here under consideration.
Both parties presented their respective versions of what
took place during that meeting. Petitioner did so through his
own testimony. Respondent did so through the testimony of Mr.
Griffin. After listening to and reviewing the testimonies of
these individuals, the Court cannot help but wonder if they were
describing the same event.
Petitioner's account centers on the GNMA letter, which
contained a bid on a loan servicing contract and indicated that a
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