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tangentially referenced as a possible claim of petitioner in
addition to those in the pending suit.
Accordingly, we are unable, in these circumstances, to find
that a specific portion of the settlement was intended by the
defendants to settle any potential claim petitioner might have
had for mental anguish. See, e.g., Ramos v. Davis & Geck, Inc.,
224 F.3d 30 (1st Cir. 2000). We note that the Court of Appeals
for the Eleventh Circuit recently held, based on “unique facts”,
that damages to the taxpayer’s business reputation was a personal
injury within the meaning of section 104(a)(2). Fabry v.
Commissioner, 223 F.3d 1261, 1270 (11th Cir. 2000), revg. 111
T.C. 305 (1998). Because any appeal by petitioner would be to
the Court of Appeals for the Eleventh Circuit, we must consider
whether facts in this case fall with the factual pattern upon
which the taxpayers in Fabry were granted section 104(a)(2)
relief.
In Fabry the tort committed resulted in the taxpayer’s
selling defective “merchandise that was said to have cheated the
* * * [taxpayer’s customers].” Id. Here, the tortfeasors
interfered with petitioner’s corporation’s ability to earn
income. The litigating success of petitioner and other car
dealers against these same defendants was rooted in commercial
losses due to misrepresentation and fraud (attributed to the
defendants and not to petitioner). That was the focus of
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