Sheldon R. and Phyllis Milenbach, et al. - Page 27

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               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’s                     





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