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arguendo that petitioner had been under a contingent obligation
to return the $150,000 assistance payment to du Pont, we find on
the instant record that petitioner has failed to establish that
he did not receive the $150,000 assistance payment under a claim
of right. See North Am. Oil Consol. v. Burnet, 286 U.S. 417, 424
(1932).
We turn now to Mr. Henry's alternative argument that "if the
[$150,000 assistance] payment could be considered an advance
payment, it is clear under the law as it existed in 1992 that the
payment was excluded from income due [to] damage to the Peti-
tioner's livelihood including reputation." We presume that
petitioner is arguing that the $150,000 assistance payment is to
be excluded from income under section 104(a)(2). On the record
before us, we reject any such argument.
Section 104(a)(2) provides that "gross income does not
include * * * the amount of any damages received (whether by suit
or agreement and whether as lump sums or as periodic payments) on
account of personal injuries or sickness". There is no evidence
in the record that when petitioner requested in late January
1992, and received in early February 1992, the $150,000 assis-
tance payment he was making any claims of personal injuries or
even any claims of loss of business reputation and/or loss of
reputation as an orchid grower. To the contrary, the record
establishes that at those times Mr. Henry was negotiating with du
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