Fred Henry - Page 8

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               Petitioner contends that he has satisfied his burden of                
          proof under section 104(a)(2) by demonstrating that the damages             
          that he was awarded against Dupont and Universal arose from                 
          negligent conduct, a tort, and that the damages were paid on                
          account of a personal injury; i.e., the harm to petitioner's                
          professional reputation as an orchid grower.                                
               Respondent counters that material facts remain in dispute.             
          Specifically, respondent contends that the record reflects that             
          petitioner received the payment in question by way of a                     
          settlement as opposed to the State court judgment.  In                      
          conjunction with this argument, respondent contends that                    
          petitioner has failed to show that the payment was made to                  
          compensate petitioner for personal injuries.                                
               Based upon our review of the entire record, we are not                 
          persuaded that the issue of the applicability of section                    
          104(a)(2) to the Dupont/Universal payment is ripe for summary               
          adjudication.  Contrary to petitioner's assertion, a factual                
          inference may be drawn from the record that petitioner received             
          the payment in question pursuant to a settlement with Dupont and            
          Universal.  In particular, the record indicates that, after                 
          Dupont and Universal filed their appeal, petitioner accepted a              
          gross payment from Dupont and Universal that was approximately              
          $37,054 less than the amount awarded pursuant to the final                  
          judgment of the trial court.  Assuming for the moment that the              
          Dupont/Universal payment was in fact made pursuant to a                     



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