Richard and Margaret Sherman - Page 10




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          employment with IBM is excludable from petitioners' 1993 gross              
          income pursuant to section 104(a)(2).                                       
               Pursuant to section 104(a)(2), gross income does not include           
          "the amount of any damages received (whether by suit or agreement           
          and whether as lump sums or as periodic payments) on account of             
          personal injuries or sickness."  The regulations provide that "The          
          term 'damages received (whether by suit or agreement)' means an             
          amount received * * * through prosecution of a legal suit or action         
          based upon tort or tort type rights, or through a settlement                
          agreement entered into in lieu of such prosecution."  Sec. 1.104-           
          1(c), Income Tax Regs.  Thus, in order to exclude damages from              
          gross income pursuant to section 104(a)(2), the taxpayer must               
          prove:  (1) The underlying cause of action is based upon tort or            
          tort type rights, and (2) the damages were received on account of           
          personal injuries or sickness.  See Commissioner v. Schleier, 515           
          U.S. 323, 336-337 (1995).  The claim must be bona fide.  See Taggi          
          v. United States, 35 F.3d 93, 96 (2d Cir. 1994).                            
               Where amounts are received pursuant to a settlement agreement,         
          the nature of the claim that was the actual basis for settlement            
          controls whether such amounts are excludable from gross income              
          under section 104(a)(2).  See United States v. Burke, 504 U.S. 229,         
          237 (1992).  The crucial question is "in lieu of what was the               
          settlement amount paid"?  Bagley v. Commissioner, 105 T.C. 396, 406         
          (1995), affd. 121 F.3d 393 (8th Cir. 1997).  Determining the nature         





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