Fred Henry - Page 27




                                        - 27 -                                         

          Ms. Estes.  Consequently, in the event that we were to hold, as              
          we do, that the $150,000 assistance payment is income that must              
          be reported for 1992, pursuant to the parties' stipulation,                  
          petitioner would be required to include in his gross income for              
          that year only 70 percent of that payment.                                   
               Petitioner contends that the $150,000 assistance payment is             
          not income.  In support of that contention, petitioner advances              
          the following alternative positions:                                         
                    The purpose of the payment as stated by Dupont's                   
               Benlate resolution manager was to mitigate losses, for                  
               good will, and retain customers.  As such it consti-                    
               tuted a gift.  A gift is defined in Black's law dictio-                 
               nary as a transfer of property without consideration (a                 
               right, benefit, forbearance, or detriment exchanged).                   
               There was no consideration here, thus the payment was a                 
               gift.  Gifts are not taxable under IRC �102(a)(2).  A                   
               gift required donative intent but that intent does not                  
               have to have an altruistic motive and can be motivated                  
               by self interest.                                                       
                    A casual reading of the assistance receipt would                   
               made it appear that there was no need to repay the                      
               amount.  However, a closer reading reveals that the                     
               "full amount" (emphasis added) of the assistance pay-                   
               ment will be subtracted from any settlement or judge-                   
               ment.  It does not say that if the settlement or judge-                 
               ment is less than the amount of the assistance payment                  
               the difference would not have to be repaid.  A zero                     
               verdict would require the return of the whole assis-                    
               tance payment.  This is consistent with the opinion of                  
               Dupont's Benlate resolution manager stated he and other                 
               Dupont officials believed that Dupont has the right to                  
               be reimbursed for the amount of the assistance payment.                 
                    An alternate way to view the assistance payment                    
               based on the receipt that it was a no interest loan                     
               which would have to be repaid.  Loans are not income                    
               and are not taxable.  (Loans do not require a prom-                     






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