F. Browne Gregg, Sr., and Juanita O. Gregg - Page 17




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          104(a)(2) because the * * * [personal injury] language could                 
          easily be included in every complaint, even if such a claim were             
          only a ‘throwaway’ claim”).                                                  
               In closing arguments at the third jury trial, petitioner’s              
          counsel characterized petitioner’s injuries as damages suffered              
          “by reason of giving up his businesses”; petitioner’s counsel                
          made no argument for compensatory damages for any other type of              
          injury.  The jury instructions contain no reference to any                   
          injuries other than economic harms.  The trial court instructed              
          the jury in relevant part as follows:                                        
               Therefore, if you find that * * * [petitioner] has been                 
               damaged, you should award * * * [petitioner] an amount                  
               of damages equal to the difference in value between                     
               what * * * [petitioner] gave USI and the value of what                  
               he received from USI in return.                                         
               Standing alone, the fact that damages are measured in                   
          economic terms does not compel the conclusion that the injury                
          redressed is economic rather than personal, for economic loss may            
          be the best available measure of a personal injury.  Bent v.                 
          Commissioner, 835 F.2d 67, 70 (3d Cir. 1987), affg. 87 T.C. 236              
          (1986).  In the case at hand, however, we believe that the harm              
          which was measured by economic factors was in fact an economic               
          injury.  See Kightlinger v. Commissioner, supra (concluding that             
          “economic factors were not merely used as a yardstick to measure             
          the extent of the injury; rather, they were the harm for which               
          petitioner received his compensation”).                                      
               In sum, petitioners have failed to prove that the                       
          compensatory damages awarded on petitioner’s common-law fraud                


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