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changed even after petitioner had introduced the personal injury
element into the negotiations.
During the audit examination, petitioner asserted, in a June
8, 1998, letter, that his settlement payment from Winston was for
a release of his claims for IIED, defamation, and diminishment of
personal reputation. Petitioner contended that the defamation
and diminishment of personal reputation claim was based on
certain improprieties of Winston’s managing partner, at the time
petitioner left the firm. The managing partner’s improprieties
were not discovered or made public until approximately 9 months
after petitioner proposed the personal injury clause be added to
the agreement. Petitioner did not raise a specific defamation
and diminishment of personal reputation claim in negotiations
with Winston and did not assert that position at trial.
Between June 12, 1992, and January 13, 1993, Winston made
five separate payments to petitioner, which totaled $48,420.21.
The payments were issued pursuant to petitioner’s request and he
used them to pay estimated State income tax bills and to make a
Keogh plan contribution. Upon receiving each payment, petitioner
signed documents confirming that he received an “advance” from
Winston on each of the five respective dates. The signed
documents also contained the condition that the advances would be
recaptured from any lump-sum payment the firm might agree to give
petitioner upon his transition from status as an active partner.
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