Hughes A. and Marilyn B. Bagley - Page 15

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            In the McKay case the record showed that the taxpayer was never given freedom               
            to structure the settlement on his own.  In our view, the instant case is                   
            distinguishable from the McKay case, since there is no specific statement with              
            respect to punitive damages in the settlement agreement, and the parties                    
            structured the settlement agreement by jointly participating in the drafting                
            of the agreement.  Although this case is not exactly comparable to Robinson v.              
            Commissioner, supra, there are some aspects of similarity to the Robinson                   
            case.  Here, the record shows that a judgment had been entered by a jury with               
            respect to the libel claim, and the jury had allowed $l million of                          
            compensatory damages and $5 million of punitive damages.  The record shows                  
            that the Court of Appeals had held the claim with respect to tortious                       
            interference with future employment duplicative of the libel claim, but did                 
            not reverse the jury award of $100,000 of compensatory damages and $250,000 of              
            punitive damages, if on retrial petitioner was unsuccessful in the libel suit.              
            The record further shows that the District Court had held that consideration                
            would be given to reinstatement of the invasion of privacy award, of $250,000               
            in compensatory and $1.5 million in punitive damages if on retrial petitioner               
            was unsuccessful in the libel suit.  Therefore, $1 million was likely to be                 
            the total petitioner would receive as compensatory damages, if on retrial he                
            succeeded on the libel claim.  The record shows that counsel for IBP was                    
            unwilling to have a statement made that a portion of the $1.5 million was paid              
            as punitive damages, and the parties agreed to a statement that the sum of                  
            $1.5 million was paid as damages for personal injuries, including alleged                   
            damages for invasion of privacy, injury to personal reputation, defamation,                 
            emotional stress, and pain and suffering.  However, there is no specific                    
            statement, as there was in McKay v. Commissioner, 102 T.C. 465 (1994), that                 
            the damages referred to were not in consideration of any amount that might                  
            have been awarded as punitive damages had the case gone to trial.  The overall              
            picture here clearly shows that IBP would necessarily have considered the                   





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