Sheldon R. and Phyllis Milenbach, et al. - Page 24

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          1490 (9th Cir. 1990), revg. 91 T.C. 160 (1988) (quoting Tribune             
          Pub. Co. v. United States, 836 F.2d 1176, 1177 (9th Cir. 1988)).            
          In characterizing the settlement payment for tax purposes, we               
          ask:  “‘In lieu of what were the damages awarded?’”  Tribune Pub.           
          Co. v. United States, supra (quoting Raytheon Prod. Corp. v.                
          Commissioner, 144 F.2d 110, 113 (1st Cir. 1944), affg. 1 T.C. 952           
          (1943)).                                                                    
               Petitioners have focused on the purpose referred to in the             
          settlement agreement (“settling disputed claims involving the               
          restoration of lost franchise value”) as the basis of their                 
          argument that the damages were for injury to goodwill.  While the           
          stated purpose of the settlement agreement is to be considered,             
          courts “employ a broad approach in determining the true nature              
          and basis of a party’s claim.”  Getty v. Commissioner, supra at             
          1491.                                                                       
               The parties in these cases have introduced several items of            
          evidence to show the true nature of the claim involved.  The                
          notice of claim filed by the Raiders with Oakland states:  “the             
          plaintiff [Oakland] has denied to defendant Raiders the free and            
          untrammeled possession and use of the property sought to be                 
          condemned, viz, Raiders’ franchise in the National Football                 
          League and has thereby itself preempted Raiders’ full possessory            
          rights”.  The notice of claim enumerated the ways in which                  
          Oakland had caused the Raiders to suffer damages, including lost            
          revenue and increased expense.                                              




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