Gavin Polone - Page 49

                                       - 49 -                                         
          million for the defamation claim and $2 million plus the back-end           
          payments for the breach of contract claim.  At the time of the              
          settlement, the back-end payments were estimated to be worth                
          approximately $2 million.  This meant that at the time of the               
          settlement (and allocation), the parties allocated only 50                  
          percent (10 percent less than petitioner initially sought) to the           
          defamation claim.  By the time of trial, the back-end payments              
          significantly exceeded $2 million and were continuing to be made            
          to petitioner.  Accordingly, even less than 50 percent of the               
          settlement actually was allocated to the defamation claim.                  
               Upon the basis of all the facts and circumstances, we                  
          believe that UTA intended that the $4 million UTA paid petitioner           
          pursuant to the defamation agreement was to settle petitioner’s             
          defamation claim and that this amount was appropriately allocated           
          to this claim.                                                              
               At the end of the trial, respondent conceded that if we                
          respected the allocation of the settlement, then the May 1996               
          payment is excludable from income pursuant to pre-SBJPA section             
          104(a)(2).  Accordingly, this resolves petitioner’s 1996 tax                
          year.25                                                                     





               25  Respondent’s concession also means that there is no                
          understatement or underpayment for 1996.  Accordingly, petitioner           
          is not liable for the sec. 6662 penalty for 1996.  Secs. 6662(a),           
          (d), 6664(a).                                                               




Page:  Previous  39  40  41  42  43  44  45  46  47  48  49  50  51  52  53  54  55  56  57  58  Next

Last modified: May 25, 2011