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identical language from the Clayton Act on which the RICO
statute was patterned. The Court concluded that Congress
intended the phrase "business or property" to exclude
personal injuries. Id. at 339, 99 S.Ct. at 2331.
A. The Settlement Agreement
In the case before us, petitioner received a portion of the
recovery in a class action pursuant to a settlement agreement.
When damages are received pursuant to a settlement agreement, the
nature of the claim that was the actual basis for settlement
controls whether such damages are excludable under section
104(a)(2). United States v. Burke, supra; Thompson v.
Commissioner, 866 F.2d 709, 711 (4th Cir. 1989), affg. 89 T.C.
632 (1987); Robinson v. Commissioner, supra. Determination of
the nature of the claim is factual. Bagley v. Commissioner,
supra; Stocks v. Commissioner, 98 T.C. 1, 11 (1992). "[T]he
critical question is, in lieu of what was the settlement amount
paid." Bagley v. Commissioner, supra at 406. Therefore, the
intent of the payor is the most important factor. Knuckles v.
Commissioner, 349 F.2d 610, 612 (10th Cir. 1965), affg. T.C.
Memo. 1964-33; Robinson v. Commissioner, supra; Stocks v.
Commissioner, supra at 10.
We first consider the settlement agreement in deciding the
intent of the payor in paying the settlement proceeds. See
Robinson v. Commissioner, supra. The joint stipulation of
settlement involved herein did not specifically allocate the
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