Damian Gerard and Leigh H. Gerard - Page 23

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               In the instant case, as in LeFleur v. Commissioner, supra,             
          the evidence does not suggest that the parties had any                      
          adversarial interests in characterizing the settlement payments             
          as being for “personal damages”.  On the basis of all the                   
          evidence, it appears that the “personal damages” characterization           
          occurred after the parties had reached agreement in principle on            
          the settlement.  Clearly, petitioners had tax motivations for               
          characterizing the payments as being for personal injuries.  The            
          evidence strongly suggests that Maritz Inc. was unconcerned with            
          how the payments were allocated, so long as all potential claims            
          were discharged.9                                                           
               In sum, we are unconvinced that the mere use of the term               
          “personal damages” in various documents, as described above,                
          establishes that Maritz Inc. intended the settlement payments to            
          discharge exclusively claims for personal injuries or sickness.             
          Consequently, we look to all the evidence to determine the nature           
          of the underlying claims for which the payments were made and the           
          intent of Maritz Inc. in making the payments.                               



               9 Millard Backerman testified that he thought “the lion’s              
          share” of the tax consistency letter was drafted by Katherine’s             
          and Damian’s attorney, Kenneth Suelthaus.  Petitioners seek to              
          counter this testimony with testimony by David Fleisher, former             
          chief financial officer of Maritz Inc., that the tax consistency            
          letter was “drafted by our lawyers”.  We find Backerman’s                   
          testimony more credible in this regard, particularly in light of            
          the fact that Backerman was Maritz Inc.’s attorney in the                   
          settlement negotiations.                                                    





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