Damian Gerard and Leigh H. Gerard - Page 22

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               In key respects the circumstances here are similar to those            
          in LeFleur v. Commissioner, T.C. Memo. 1997-312.  In LeFleur, the           
          taxpayer received a lump-sum settlement payment that covered both           
          tortlike personal damages and other damages.  The settlement                
          agreement allocated 80 percent of the proceeds to tortlike                  
          personal damages.  Id.  The evidence indicated that although the            
          underlying litigation was adversarial, by the time the settlement           
          agreement was reached, the parties were no longer adversaries.              
          Id.  Because the payor was unconcerned with the allocation of the           
          settlement proceeds as between tortlike personal injuries and               
          other injuries, the taxpayer “in effect was able to unilaterally            
          allocate the proceeds” in an attempt to maximize tax advantages             
          for themselves.  Id.  Consequently, this Court refused to                   
          “blindly accept the parties’ allocation of settlement proceeds              
          where * * * the allocation is patently inconsistent with the                
          realities of the underlying claims”.  Id.; see also Bagley v.               
          Commissioner, supra at 406-410; Robinson v. Commissioner, 102               
          T.C. at 128-134; Burditt v. Commissioner, T.C. Memo. 1999-117;              
          Hess v. Commissioner, T.C. Memo. 1998-240 (“the characterization            
          of the payment in a settlement agreement (or other executed                 
          document) * * * is not always dispositive, for example, when the            
          record proves the characterization inconsistent with the                    
          realities of the settlement”).                                              







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