- 16 - settlement agreement are excludable under section 104(a)(2), we look to the written terms of the settlement agreement to determine the origin and allocation of the settlement proceeds. See Metzger v. Commissioner, 88 T.C. 834 (1987), affd. without published opinion 845 F.2d 1013 (3d Cir. 1988); Jacobs v. Commissioner, T.C. Memo. 2000-59. If the language in the settlement agreement is unclear about the claim subject to settlement or if the settlement agreement does not provide for any allocations, we must look to “‘the intent of the payor’ as to the purpose in making the payment.” Metzger v. Commissioner, supra at 847-848; see also Robinson v. Commissioner, 102 T.C. 116, 127 (1994), affd. in part, revd. in part and remanded on another issue 70 F.3d 34 (5th Cir. 1995). We analyze the nature of the claim that was the basis for settlement, not the validity of the claim. See United States v. Burke, supra at 237; Fabry v. Commissioner, 111 T.C. 305 (1998). We ask ourselves “in lieu of what was the settlement amount paid?” Bagley v. Commissioner, 105 T.C. 396, 406 (1995), affd. 121 F.3d 393 (8th Cir. 1997). This involves a factual inquiry. See Fabry v. Commissioner, supra. In the instant case, the litigants disagree as to the nature of the claim that was the actual basis for the final settlement agreement. Petitioners contend that petitioner alleged various causes of actions in his lawsuit against the FDIC which arePage: Previous 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Next
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