Estate of Sarah M. Davenport, Deceased, Richard Davenport, Executor - Page 26

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          the rights afforded by paragraph 4.0 inured to decedent’s parents           
          only as her “co-conservators”.                                              
               The Court would also make a final observation in connection            
          with the testimonial record.  It is well settled that when a                
          settlement agreement fails to designate the reason for a payment,           
          the intent of the payor in making the payment controls for tax              
          purposes.  See, e.g., Francisco v. United States, 267 F.3d 303,             
          319 (3d Cir. 2001); Knuckles v. Commissioner, 349 F.2d 610, 613             
          (10th Cir. 1965), affg. T.C. Memo. 1964-33; Metzger v.                      
          Commissioner, 88 T.C. 834, 847-848 (1987), affd. without                    
          published opinion 845 F.2d 1013 (3d Cir. 1988); Reisman v.                  
          Commissioner, T.C. Memo. 2000-173, affd. 3 Fed. Appx. 374 (6th              
          Cir. 2001).  Yet the estate did not call as a witness any of the            
          defendants in the underlying lawsuit.  Suffice it to say that the           
          silence of the record in this regard speaks loudly.  See, e.g.,             
          Wichita Terminal Elevator Co. v. Commissioner, 6 T.C. 1158, 1165            
          (1946), affd. 162 F.2d 513 (10th Cir. 1947).                                
               In support of their respective positions, both sides rely              
          primarily on a single case.  The estate analogizes from Kegel v.            
          State, 830 P.2d 563 (N.M. Ct. App. 1992), while respondent draws            
          our attention to Arrington v. United States, 34 Fed. Cl. 144                
          (1995).  Kegel v. State, supra at 564, involved a settlement                
          agreement resulting from a malpractice lawsuit brought by a                 
          disabled minor child and his parents.  The settlement agreement             






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