Fred Henry - Page 43




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          growers, that argument also was rejected, as a matter of law, by             
          the Supreme Court in O'Gilvie v. United States, 519 U.S. 79                  
          (1996).  In O'Gilvie, the Supreme Court held that the "on account            
          of" test of section 104(a)(2) requires more than a "but-for"                 
          connection between the damages and a personal injury.  That test,            
          according to the Supreme Court, requires that the damages be                 
          awarded by reason of, or because of, the personal injury, and not            
          another cause.  See O'Gilvie v. United States, supra.  On the                
          record before us, we find that petitioner has failed to establish            
          that all or any portion of the $2,800,000 total settlement                   
          amount, or the $1,623,203 settlement payment, was paid by reason             
          of, or because of, the loss of the plaintiffs' business rep-                 
          utation or the loss of their reputation as orchid growers.                   
               Although we need not do so in order to resolve the question             
          presented under section 104(a)(2), for the sake of completeness              
          we shall address petitioner's contention that "Damage to rep-                
          utation is clearly personal injury for the purpose of IRC                    
          �104(a)(2)."  While not altogether clear, petitioner appears to              
          be taking the position that damage to reputation is, as a matter             
          of law, personal injury within the meaning of section 104(a)(2).             
          We rejected such an argument in Fabry v. Commissioner, 111 T.C.              
          305 (1998), and we reject any such argument here.                            
               In Fabry, the taxpayers (the Fabrys) operated a nursery in              
          which they grew ornamental plants, and they developed a rep-                 





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