-27--27- litigation. Whether the amount represented damages for wrongful injury to the petitioner’s good will, or whether it represented damages for loss of profits, or indeed whether the amount was simply paid by the defendants to avoid further expense and harassment resulting from long continued litigation, does not definitely appear. However, upon examination of the declarations in the two actions referred to, we are unable to conclude that the plaintiff there was seeking damages only for alleged injury to its goodwill. * * * [Id. at 321.] While petitioners are not required to prove that the settlement proceeds are clearly classifiable as what they claim them to be, petitioners must show by a preponderance of the evidence the merits of their claim that the settlement was received for damage to goodwill. Getty v. Commissioner, 913 F.2d at 1492; Rockwell v. Commissioner, 512 F.2d 882, 885 (9th Cir. 1975), affg. T.C. Memo. 1972-133. The preponderance of the evidence here shows that the damages that the Raiders sought were for lost profits. The 82-page damage study referred to the damages incurred as lost revenue and lost income. The notice of claim, which also listed alleged damages, referred to extra expenses incurred and lost revenues. The Raiders have failed to provide us with a basis upon which to estimate any portion of the settlement that relates to damage to goodwill. See Bresler v. Commissioner, 65 T.C. 182, 188 (1975) (estimation that a portion of antitrust settlement was for injury to goodwill possible when evidence showed business had failed as a result of the actions from which the lawsuit arose). Therefore, respondent’sPage: Previous 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 Next
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