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for paying retirement or severance benefits to the other partners
and directors who were being terminated. Such an inference could
detract from the weight of petitioners’ evidence and would have
to be considered in deciding whether petitioners met their burden
if the burden of proof remained on petitioners. However, if the
burden of proof has shifted to respondent, as we hold that it
has, Mr. Ladd’s testimony clearly fails to satisfy respondent’s
burden of proving that the $25,130 payment from DHS was not
intended to settle Mr. Forste’s tort or tort type personal injury
claims. We hold that respondent has failed to meet his burden of
proof with respect to this amount.
V. Burden of Proof--Amount in Excess of $25,130
We now decide whether any amount in excess of $25,130 is
excludable. Paragraph 2 of the settlement agreement provides for
“additional compensation for other claims and entitlements”.
There is nothing in the language of paragraph 2 or the
negotiations leading up to the final agreement that would allow
us to make an allocation of any amount paid under paragraph 2 to
compensation for tort type personal injuries.24 Indeed, on
brief, petitioners acknowledge that “This paragraph was intended
to provide compensation for claims other than tort or tort-type
claims.” Any increase to the annual payment of $25,130 specified
24In one of its draft proposals DHS began paragraph 2 as
follows: “In addition, as compensation for other non-tort claims
and entitlements, DH&S agrees to provide me with:”.
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