- 12 - at least to the extent of $112,542.21 (the amount of the special severance payment offered to petitioner). The remaining portion of the payment, $2,957.79 (the additional payment) is not separately dealt with in the final agreement, and, therefore, we must look outside of the final agreement to determine its character. Cf. Stocks v. Commissioner, 98 T.C. 1, 10 (1992) (“If the settlement agreement lacks express language stating what the settlement amount was paid to settle, then the most important factor in determining any exclusion under section 104(a)(2) is ‘the intent of the payor’ as to the purpose in making the payment.”) (citing Knuckles v. Commissioner, 349 F.2d 610, 613 (10th Cir. 1965), affg. T.C. Memo. 1964-33); Metzger v. Commissioner, 88 T.C. 834, 847-848 (1987), affd. without published opinion 845 F.2d 1013 (3d Cir. 1988). Ms. Nikituk was respondent’s witness. Although she did not directly participate in the negotiations with petitioner, she testified that she understood the additional amount to be “a severance amount to settle this case amicably”. Petitioner could have called someone from Boehringer with direct knowledge of those negotiations in an attempt to support petitioner’s position that some portion of the additional amount (or, indeed, the payment itself) was section 104(a)(2) damages, but he failed to do so. We can infer from that failure that such testimony would not have been favorable to petitioner. Mecom v. Commissioner,Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 Next
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