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nothing in our opinion in Robinson, or the affirmance by the
Court of Appeals for the Fifth Circuit, to suggest that the prior
agreement as to the settlement amount was critical to the finding
that the allocations at issue were not adversarial. Our finding
in Robinson was based upon a number of facts and circumstances,
which are also present in this case. Parallels include testimony
from the payor's attorney that the parties were not adverse as to
the allocation language, that the allocation language was
unilaterally drafted by the payee, and that the allocation
language was not drafted until after the issue of the amount of
settlement had been decided. The record in this case does not
show that any negotiation over the specifics of the allocation
occurred.
It is also clear in this case, as in Robinson, that the
allocation language sought by petitioner was entirely tax-
motivated. Petitioner instructed the attorney representing him
in the settlement negotiations to make sure he inserted the
“proper personal injury language” so that proceeds could be
received free of tax. The attorney consulted an accountant for
this purpose, who provided “boilerplate” language.
Finally, as in Robinson, the allocation language does not
reflect the realities of the settlement. For example, the
allocation is made to petitioner for, inter alia, “damage to his
reputation and loss of goodwill”. However, nowhere in the
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