Wade H. Griffin, III - Page 17




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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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