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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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