Fred Henry - Page 31




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          Henry received, the $50,000 assistance payment from du Pont.  In             
          late January 1992, Mr. Henry requested, and in early February                
          1992, Mr. Henry received, the $150,000 assistance payment from du            
          Pont.  On the record before us, we find that petitioner has                  
          failed to show that he was under any restrictions as to how he               
          used either the $50,000 assistance payment or the $150,000                   
          assistance payment or that he did not have full control over how             
          he used each of those payments.  We further find on that record              
          that petitioner has failed to establish that he was under an                 
          obligation (contingent or otherwise) to return either the $50,000            
          payment2 or the $150,000 payment to du Pont or that there were               
          any indicia of a loan associated with either of those payments.              
          The record does show that at the respective times du Pont made               
          the $50,000 assistance payment and the $150,000 assistance                   
          payment to Mr. Henry it expected to pay him substantial, ad-                 
          ditional amounts with respect to his claimed damage due to his               
          use of Benlate.  Indeed, the record establishes that du Pont                 
          offered Mr. Henry a settlement of $509,742 by letter dated March             

               2Although du Pont's Benlate resolution manager, who was in              
          charge of assistance payments, and certain other du Pont of-                 
          ficials considered that du Pont had a right to ask that an                   
          assistance payment be paid back to it, they never sought a formal            
          opinion from du Pont's attorneys on the question.  Moreover, we              
          do not believe that, because du Pont's Benlate resolution manager            
          and certain other du Pont officials considered that du Pont had a            
          right to ask that an assistance payment be paid back to it, du               
          Pont had the legal right to require that an assistance payment be            
          returned to it.                                                              





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