Fred Henry - Page 29




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               sections of the Code.  See Commissioner v. Glenshaw                     
               Glass Co., 348 U.S. 426, 429-431 (1955). * * *                          
                  *       *       *       *       *       *       *                    
                    * * * There is no evidence that the assistance                     
               payments were gifts.  They were paid to persons and                     
               businesses who were damaged by a product of du Pont.                    
               As indicated by du Pont, their rough rule of thumb was                  
               to make assistance payments of no more than one third                   
               of the value of the damage caused. * * * The record                     
               establishes that the petitioner was offered settlements                 
               in excess of $500,000 and $900,000 in 1992.  * * *                      
               Clearly, du Pont and the petitioner recognized that du                  
               Pont owed petitioner substantially more than the a-                     
               mounts of the assistance payments.  They were not                       
               gifts, but partial compensation for the damage and made                 
               in advance to mitigate against further consequential                    
               loss by the petitioner.                                                 
                    As to the loan theory, du Pont never required                      
               repayment. * * * The petitioner was destitute and his                   
               only valuable asset was the cause of action against du                  
               Pont. * * * None of the normal indicia of a loan are                    
               present, no note, no repayment schedule, no interest,                   
               and no security. * * * Clearly, the assistance payment                  
               was partial payment in compensation for the damage done                 
               by Benlate.                                                             
               On the record before us, we agree with respondent that the              
          $150,000 assistance payment is income for 1992.  During 1991, du             
          Pont realized that its fungicide Benlate may be responsible for              
          damage to plants, established a Benlate claims process, and                  
          retained Crawford to work in the field to assist it in evaluating            
          alleged Benlate damage and processing claims for damage payment.             
          Beginning in 1991 and continuing into 1992, du Pont made as-                 
          sistance payments to persons who filed claims with du Pont for               
          alleged damage due to Benlate.  The intention of du Pont in                  






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