Fred Henry - Page 6




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          Commissioner v. Schleier, 515 U.S. 323 (1995), and cases decided            
          after Schleier, including O’Gilvie v. United States, 519 U.S. 79            
          (1996), and Greer v. United States, 207 F.3d 322 (6th Cir. 2000).           
          See Fabry v. Commissioner, supra at 1269-1270.  The Court of                
          Appeals then examined what it considered to be the “unique facts”           
          presented in Fabry.  See id. at 1270-1271.  On the basis of that            
          examination, the Court of Appeals held that, in light of those              
          unique facts, the Fabrys had established that the $500,000 which            
          the Commissioner conceded was paid by du Pont as damages for                
          injury to their business reputation was received on account of              
          personal injuries, as required by Commissioner v. Schleier, supra           
          at 337, and consequently is excludable from gross income under              
          section 104(a)(2).  See Fabry v. Commissioner, supra at 1271.               
          Henry v. Commissioner                                                       
               While summarizing the procedural background of the case                
          before it on appeal in Fabry v. Commissioner, supra, the Court of           
          Appeals cited in a footnote our opinion in Henry v. Commissioner,           
          T.C. Memo. 1999-205, and described our findings in that opinion             
          as follows:                                                                 
               6.   See also Henry v. Commissioner, 77 T.C.M. (CCH)                   
               2209, 1999 WL 405225 (1999)(where, relying upon its                    
               opinion in this case, Fabry v. Commissioner, 111 T.C.                  
               305, 1998 WL 872851 (1998), the tax court found that                   
               the $1,623,203 payment received in 1994 by the tax-                    
               payer, a Florida orchid grower, for loss of business                   
               reputation and loss of business reputation as an orchid                
               grower, in settlement of his claim for negligence and                  
               strict liability in tort against du Pont, after appli-                 
               cation of its chemical fungicide on his orchids, was                   





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