Carl J. Fabry and Patricia P. Fabry - Page 13

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          however, consider extrinsic evidence.  Threlkeld v. Commissioner,           
          87 T.C. at 1306; Church v. Commissioner, 80 T.C. 1104, 1107                 
          (1983); Fono v. Commissioner, 79 T.C. 680, 696 (1982), affd.                
          without published opinion 749 F.2d 37 (9th Cir. 1984).  We must             
          determine the nature of petitioners’ claims and the intent of the           
          payor (du Pont) in making the $500,000 payment.  We look to                 
          petitioners’ First Amended Complaint for Damages and Demand for             
          Jury Trial (the complaint) to determine the nature of their                 
          claim.  The complaint asks for damages and avers essential facts.           
          Petitioners claim that the Benlate they purchased was defective             
          and proved detrimental to their nursery products.  They claim               
          that, as the direct and proximate result of their use of the                
          defective Benlate, among other things, they suffered damage to              
          their business reputation.  They base their claims for damages              
          against du Pont on theories of strict liability in tort and                 
          negligence.  Nowhere in the complaint, however, do petitioners              
          use the term “personal injuries” to describe the injuries claimed           
          to have been suffered as the result of their use of Benlate.                
               Petitioners have not argued to us (nor do we believe) that             
          all injuries attributed to a defendant under a theory of strict             
          liability in tort or caused by a defendant’s negligence                     
          necessarily are personal injuries within the meaning of section             
          104(a)(2).  Moreover, as we said supra in section III.D.1.,                 
          damage to business reputation is not, per se, a personal injury             





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