- 43 - 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-Page: Previous 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 Next
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