Paul S. Lindsey, Jr. and Kristen L. Lindsey - Page 10

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          damages were received on account of tortlike personal injuries.             
          See Robinson v. Commissioner, supra at 126.  The determination of           
          the nature of the claim is factual and is made by reference to              
          the settlement agreement in light of the surrounding                        
          circumstances.  Id.  A key question to ask is:  “‘In lieu of what           
          were the damages awarded?’”  Id. (quoting Raytheon Prod. Corp. v.           
          Commissioner, 144 F.2d 110, 113 (1st Cir. 1944), affg. 1 T.C. 952           
          (1943)).  An important factor in determining the validity of the            
          agreement is the intent of the payor.  Id. at 127.                          
               Petitioners contend that section 7491, which was added to              
          the Code by the Internal Revenue Service Restructuring and Reform           
          Act of 1998, Pub. L. 105-206, sec. 3001, 112 Stat. 726, shifts to           
          respondent the burden of proof of the nature of the claim.                  
          Respondent, however, argues that petitioners have not satisfied             
          the statutory requirements under section 7491 because petitioners           
          neither cooperated with reasonable requests for information nor             
          presented credible evidence.  See sec. 7491(a)(1) and (2)(B).  In           
          this case, we need not decide whether petitioners have complied             
          with the requirements of section 7491 because the resolution of             
          this issue does not depend on which party has the burden of                 
          proof.  We resolve this issue on the preponderance of the                   
          evidence in the record.                                                     
               Under the terms of the termination agreement, petitioner was           
          awarded $2 million “in settlement of his claims for tortious                





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