Mitchell Wayne Andrew and Nancy Rae Patten - Page 7

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          the focus is the nature of the claim underlying the damage award.           
          United States v. Burke, 504 U.S. 229, 237 (1992).  The underlying           
          claim giving rise to the recovery must be “based upon tort or               
          tort type rights”, and the damages must have been received “on              
          account of personal injuries or sickness”.  Commissioner v.                 
          Schleier, 515 U.S. 323, 336-337 (1995).                                     
               Section 1.104-1(c), Income Tax Regs., provides that “The               
          term ‘damages received (whether by suit or agreement)’ [in                  
          section 104(a)(2)] means an amount received (other than worker’s            
          compensation) 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.”                                  
               Despite the fact that petitioner sued to obtain Social                 
          Security disability benefits, these benefits do not constitute              
          “damages” from a tortious injury.  Rather, these benefits are               
          amounts received through disability insurance.4  See Andrews v.             
          Commissioner, T.C. Memo. 1992-668.                                          
               Taking into account petitioners’ 2000 filing status, their             
          modified adjusted gross income, and the Social Security                     
          disability benefits petitioner received that year, 85 percent of            

               4  To the extent that petitioners did receive erroneous                
          advice on this point from one of respondent’s employees, the                
          event is of no significance here.  See Zimmerman v. Commissioner,           
          71 T.C. 367, 371 (1978), affd. without published opinion 614 F.2d           
          1294 (2d Cir. 1979); Green v. Commissioner, 59 T.C. 456, 458                
          (1972).                                                                     





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