Carl J. Fabry and Patricia P. Fabry - Page 10

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          excludable under [section 104(a)(2)]”.  Petitioners state:  “No             
          special causation analysis was utilized in the Noel and                     
          Knevelbaard decisions nor was one necessary.”  In the Noel case,            
          the taxpayer had sued PepsiCo, Inc. (PepsiCo), claiming both                
          breach of contract and tortious interference with contractual               
          rights and prospective business advantages.  The case was                   
          settled, and the taxpayer received an undifferentiated amount in            
          settlement of all of his claims.  We found that PepsiCo’s actions           
          had caused the taxpayer to suffer emotional distress and had                
          resulted in damage to the taxpayer’s business reputation.  We               
          also found that the settlement payment was intended to settle               
          both the taxpayer’s contract claims and the tort claims.  We                
          divided the settlement amount between those two categories and              
          held that the amount allocable to the tort claims was excludable            
          under section 104(a)(2).  A fair reading of our report is that we           
          included as a tort claim the claim for damage to the taxpayer’s             
          business reputation (the business reputation claim).  We did not            
          state how much (if any) of the tort claim recovery was allocable            
          to the business reputation claim, but it is a fair reading of our           
          report that some of it was.  We did not discuss at length our               
          reasons for concluding that the unstated allocation to the                  
          business reputation claim was on account of personal injuries               
          within the meaning of section 104(a)(2).  We did find, however,             
          that, during settlement negotiations, the taxpayer had discussed            





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