Fred Henry - Page 9

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          settlement, we would be required to consider any allocation in              
          the settlement agreement and/or the intent of the payors, to                
          determine whether the payment was made on account of personal               
          injuries or sickness.  See Bagley v. Commissioner, 105 T.C. 396,            
          406-408 (1995), affd. 121 F.3d 393 (8th Cir. 1997).                         
          Petitioner complains that respondent's opposition to                        
          petitioner's motion does not comply with Rule 121(d), which                 
          requires that supporting and opposing affidavits submitted with             
          respect to a motion for summary judgment shall be made on                   
          personal knowledge and that sworn or certified copies of all                
          papers or parts thereof referred to in an affidavit shall be                
          attached thereto or filed therewith.  Petitioner points out that            
          respondent has submitted an affidavit executed by Gregory Luna, a           
          Dupont legal assistant, that includes a reference to a settlement           
          between petitioner and Dupont, but the settlement document is not           
          attached to the affidavit.  Petitioner is correct that the Luna             
          affidavit is insufficient in this regard.  Nevertheless,                    
          respondent did provide the Court with a copy of the                         
          Dupont/Universal appeal and a copy of a distribution agreement              
          executed by petitioner that purportedly show that petitioner                
          ultimately received a payment from Dupont and Universal that is             
          less than the amount of the judgment entered by the trial court.            
          These documents suggest that petitioner entered into a settlement           
          with Dupont and Universal.  Counsel for petitioner was unable to            
          definitively state that there was no settlement between                     



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