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petitioners took this return position, the extent to which
written allocation provisions in a settlement agreement
controlled the tax treatment of the settlement payments was not
clear. While it had been established prior to the year in issue
that specific allocations in a settlement agreement did not
necessarily control, see Threlkeld v. Commissioner, 87 T.C. at
1306-1307; Mitchell v. Commissioner, T.C. Memo. 1990-617, affd.
without published opinion 992 F.2d 1219 (9th Cir. 1993), many
opinions prior to 1994 could be interpreted to imply that, where
there was express language in a settlement agreement making an
allocation, such language could be dispositive. See Stocks v.
Commissioner, 98 T.C. 1, 10 (1992) (“If the settlement agreement
lacks express language stating what the settlement amount was
paid to settle, then the most important factor in determining any
exclusion under section 104(a)(2) is the 'intent of the payor' as
to the purpose in making the payment.”); Metzger v. Commissioner,
88 T.C. 834, 847 (1987), affd. without published opinion 845 F.2d
1013 (3d Cir. 1988); Bent v. Commissioner, 87 T.C. 236, 244
(1986), affd. 835 F.2d 67 (3d Cir. 1987). Robinson v.
Commissioner, 102 T.C. at 127, decided in 1994, clarified that a
written allocation in a settlement agreement is respected only if
the parties were adversarial with respect thereto. Robinson
clearly resolves the issue raised by the allocation provisions in
this case, but it had not been decided when petitioners took
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