Fred Henry - Page 5




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          as damage to the Fabry’s business reputation”,3 id. at 1268-1269,           
          and that the case presented a single question of law, i.e.,                 
          whether the $500,000 of damages that du Pont paid to the Fabrys             
          for injury to their business reputation was a payment received on           
          account of personal injuries within the meaning of section                  
          104(a)(2), see id.  The Court of Appeals found our facts and                
          circumstances approach to that question in Fabry I to be insuffi-           
          cient.  See id. at 1269.  The Court of Appeals stated:  “Its [the           
          Tax Court’s] method of merely perusing the record, looking for              
          the presence of the magic words, ‘personal injury,’ either in the           
          complaint, the release, mediation correspondence or settlement              
          documents is incorrect.”  Id.                                               
               In deciding Fabry II, the Court of Appeals examined intangi-           
          ble injuries such as injury to business reputation in light of              


               3In this regard, the Court of Appeals noted:                           
                    At trial, the IRS stipulated that:  (1) du Pont                   
               was aware from the beginning that the Fabrys’ claim                    
               included a claim for damage to their business reputa-                  
               tion; (2) that throughout settlement discussions the                   
               Fabrys had steadfastly presented a $500,000 claim for                  
               damage to their business reputation; (3) that du Pont                  
               never disputed the Fabrys’ claim for business reputa-                  
               tion damage throughout the mediation; (4) that du Pont                 
               sought and obtained a release specifically with respect                
               to the business reputation claim; and (5) that du Pont                 
               would not have settled the case without a release of                   
               the claim for damage to the Fabrys’ business reputa-                   
               tion.                                                                  
          Fabry v. Commissioner, 223 F.3d 1261, 1268-1269 n.21 (11th Cir.             
          2000), revg. 111 T.C. 305 (1998).                                           





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