Michael G. Kroposki - Page 12

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           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,                             





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