Milton D. and Linda M. Peebles - Page 6

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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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