Brian David Nelson and Shauna Lee Nelson - Page 8




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              We look to the nature of the claim that was the basis of the            
         settlement to determine whether the payments petitioner received             
         are excludable under section 104(a)(2).  See id. at 237; Thompson            
         v. Commissioner, 89 T.C. 632, 644 (1987), affd. 866 F.2d 709 (4th            
         Cir. 1989).  The critical 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).  This                        
         determination is factual.  See Stocks v. Commissioner, 98 T.C. 1,            
         11 (1992).                                                                   
              When the settlement agreement expressly allocates the                   
         settlement proceeds between tortlike personal injury damages and             
         other damages, the allocation is generally binding for tax                   
         purposes to the extent that the agreement is entered into by the             
         parties in an adversarial context at arm’s length and in good                
         faith.  See Bagley v. Commissioner, supra; Robinson v.                       
         Commissioner, 102 T.C. 116, 127 (1994), affd. in part, revd. in              
         part, and remanded on other grounds 70 F.3d 34 (5th Cir. 1995);              
         Threlkeld v. Commissioner, 87 T.C. 1294, 1306-1307 (1986), affd.             
         848 F.2d 81 (6th Cir. 1988).  Even an express allocation,                    
         however, may be disregarded if the facts and circumstances                   
         surrounding a payment indicate the payment was intended by the               
         parties to be for a different purpose.  See Bagley v.                        
         Commissioner, supra; Robinson v. Commissioner, supra;                        








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