Fred Henry - Page 45




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          advancing their position, the Fabrys maintained that injury to               
          business reputation is, as a matter of law, a personal injury                
          within the meaning of section 104(a)(2).  See id. at 309.  We                
          rejected that argument.  See id. at 310-311.  In so holding, we              
          stated:                                                                      
               In Threlkeld v. Commissioner, supra, we decided not to                  
               follow our decision in Roemer v. Commissioner, 79 T.C.                  
               398 (1982), revd. 716 F.2d 693 (9th Cir. 1983), in                      
               which we distinguished between injury to personal                       
               reputation and injury to business reputation and held                   
               that damages awarded on account of defamation resulting                 
               in injury to business reputation did not give rise to                   
               damages received on account of personal injuries within                 
               the meaning of section 104(a)(2).  We did not, in                       
               Threlkeld, adopt a per se rule that damages received on                 
               account of injury to an individual's business reputa-                   
               tion are excludable under section 104(a)(2).  We de-                    
               scribed the necessary determination as presenting a                     
               question of fact.  Threlkeld v. Commissioner, supra at                  
               1305.  We said that the determination depended on the                   
               nature of the claim presented, and we looked to all the                 
               facts and circumstances of the case, including the                      
               State law characterization of the claim in question (a                  
               claim for malicious prosecution) to determine the                       
               nature of that claim.  Id. at 1307-1308.  We found that                 
               an action for malicious prosecution is similar to an                    
               action for defamation and concluded that it would be                    
               classified as an action for personal injuries under                     
               Tennessee law.  Id. at 1307.  We concluded that the                     
               payment received for the release of the taxpayer's                      
               claims against the defendant for damage to the tax-                     
               payer's professional reputation was excludable under                    
               section 104(a)(2).                                                      
          Id. at 310.                                                                  
               Having rejected the taxpayers' argument in Fabry that injury            
          to business reputation is, as a matter of law, a personal injury             
          within the meaning of section 104(a)(2), we examined the facts               






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