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petitioner’s pleadings and claims in the case that was settled.
Even though, at the time of the settlement, petitioner might have
had the ability to pursue damages for his personal injuries,
there is no way, on this record, to quantify the portion of the
settlement payment(s) that might have been attributable to claims
for mental anguish or personal injuries. The situation we
consider is different from the one addressed by the Court of
Appeals for the Eleventh Circuit in Fabry v. Commissioner, supra.
Petitioner here sued for breach of contract, promissory fraud,
violations of the Alabama Motor Vehicle Franchise Act, felonious
injury, interference with business relations, misrepresentations
and suppression of facts, and violation of RICO under title 18,
U.S.C. The settlement was global and intended to settle all of
petitioner’s above-referenced claims and any other claim that
could have been filed, including personal injury. Petitioner has
not shown what portion, if any, of the settlement was or could be
attributable to personal injury. In addition, petitioner made no
claim for, and there is no showing of, damage to his personal
business reputation as opposed to HGTG’s reputation.
Accordingly, Fabry v. Commissioner, supra, is inapplicable, and
petitioner has failed to meet the second prong of the Schleier
threshold test for exclusion of the recovery under section
104(a)(2).
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