Allen Burditt II and Sarah Maunee S. Burditt - Page 29




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          punitive damages, we must estimate the portion of the payment               
          attributable to each.  Cf. Bayou Verret Land Co. v. Commissioner,           
          450 F.2d 850, 858 (5th Cir. 1971), affg. in part, revg. in part             
          and remanding 52 T.C. 971 (1969); Cohan v. Commissioner, 39 F.2d            
          540, 543-544 (2d Cir. 1930); Vanicek v. Commissioner, 85 T.C.               
          731, 742-743 (1985).  In such an instance, we make as close an              
          approximation as possible and may choose to bear heavily upon the           
          taxpayer “whose inexactitude is of his own making.”  Cohan v.               
          Commissioner, supra at 543-544.  Given that there is little or no           
          evidence of the extent of economic damages to the well caused by            
          Halliburton’s delay in controlling the blowout, and the inherent            
          imprecision in measuring mental anguish or punitive damages, we             
          estimate that half of the Halliburton settlement ($100,000) was             
          paid to settle the claim for economic damages to the well and               
          therefore is not excludable from petitioners' gross income.8  We            
          estimate that the remaining $100,000 was paid to settle Mr.                 
          Burditt's claim for mental anguish or for punitive damages.                 
          Guided by the pleadings filed by CRI and Mr. Burditt which sought           
          $10 million in actual damages and $5 million in punitive damages,           
          we allocate two-thirds of the remaining $100,000 as paid in lieu            
          of defending against Mr. Burditt's claim for mental anguish and             


               8 To the extent amounts were paid to CRI rather than                   
          petitioners, we sustain respondent’s determination, which                   
          petitioners have not addressed, that petitioners received                   
          constructive dividends from CRI.                                            




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