Norman L. and Catherine J. Forste - Page 28

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          facts of this case and in accordance with the previously cited              
          cases, we hold that the factual issue upon which petitioners must           
          present credible evidence for purposes of section 7491(a) is what           
          portion, if any, of the $45,615 payment from DHS was received in            
          settlement of Mr. Forste’s tort or tort type personal injury                
          claims.                                                                     
          III.  Whether Petitioners Presented Credible Evidence                       
               Where there is an express allocation contained in a                    
          settlement agreement between the parties, it will generally be              
          followed in determining the amount which is received in                     
          settlement of tort or tort type claims for personal injuries,               
          provided the agreement is entered into by the parties in an                 
          adversarial context at arm’s length and in good faith.  Bagley v.           
          Commissioner, 105 T.C. at 406; Robinson v. Commissioner, 102 T.C.           
          116 (1994).                                                                 
               Petitioners contend that the agreement between Mr. Forste              
          and DHS contains an express allocation in paragraph 1.  They rely           


               19(...continued)                                                       
               T.C. 160, 175-176 (1988), affd. on this issue and revd.                
               on other issues 913 F.2d 1486 (9th Cir. 1990).                         
          Also, in Keel v. Commissioner, T.C. Memo. 1997-278, we held:                
                    Petitioners have the burden of proving the                        
               specific amounts of the payments allocable to claims of                
               tort or tort-type damages for personal injuries.                       
               Failure to meet this burden results in the entire                      
               amount’s being presumed not to be excludable. * * *                    
               [Citations omitted.]                                                   





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