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And, importantly, if the payment proceeds primarily
from “the constraining force of any moral or legal
duty,” or from “the incentive of anticipated benefit”
of an economic nature, Bogardus v. Commissioner, 302
U.S. 34, 41, it is not a gift. * * * A gift in the
statutory sense * * * proceeds from a “detached and
disinterested generosity,” Commissioner v. LoBue, 351
U.S. 243, 246; “out of affection, respect, admiration,
charity or like impulses.” Robertson v. United States,
supra [343 U.S. 711, 714 (1952)] * * *. And in this
regard, the most critical consideration, as the Court
was agreed in the leading case here, is the
transferor’s “intention.” Bogardus v. Commissioner,
302 U.S. 34, 43. * * *
B. Whether the $25,000 Payment Was a Gift
Petitioners contend that the $25,000 payment was a gift
because it was Dr. Hestir’s idea to pay it, and petitioner did
not force him to pay it. Petitioner testified that he did not
raise the issue of payment after the night he confronted Dr.
Hestir. Petitioner threatened Dr. Hestir with a lawsuit in which
he would claim $150,000 in damages. Petitioner stated that he
called Dr. Hestir 2 days after the confrontation to tell him that
Dr. Hestir’s wife knew about the affair, and that Dr. Hestir
raised the issue of money. Petitioners contend that, because Dr.
Hestir raised the subject of the $25,000 payment, it was a gift.
We disagree.
We believe that Dr. Hestir thought petitioner wanted a
payment because of the affair. We also believe that Dr. Hestir
offered the payment not because of detached generosity, but
rather as a way to close the matter and avoid being sued by
petitioner.
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