Robert E. Corrigan - Page 16

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               Petitioner relies upon a letter received from his attorney             
          stating that Prudential was willing to “reclassify the $390,000             
          dollars [sic] given to you in 1984 as a loan to a punitive damage           
          settlement award in your lawsuit.”  The release, however, states            
          that the settlement is for all claims that petitioner had                   
          asserted in connection with his employment and his termination.             
          The release is silent with respect to any allocation to a                   
          particular claim and/or punitive damages.                                   
               For the $325,000 to be excluded under section 104(a)(2),               
          petitioner must meet a two-prong test and demonstrate:  (1) That            
          the underlying cause of action giving rise to recovery is based             
          upon tort or tort type rights, and (2) that the damages were                
          received on account of personal injuries.  Commissioner v.                  
          Schleier, 515 U.S. 323, 336-337 (1995).  Unless both prongs are             
          met, the payment is not excludable from gross income under                  
          section 104(a)(2).  Id.                                                     
               In that regard, petitioner has not shown that the underlying           
          cause of action that gave rise to recovery was based upon tort or           
          tort type rights.  Most of petitioner’s claims appear to be on              
          the basis of contractual rights.  A tort is defined as a “‘civil            
          wrong, other than breach of contract, for which the court will              
          provide a remedy in the form of an action for damages.’”  United            
          States v. Burke, supra at 234 (quoting Keeton et al., Prosser &             
          Keeton on the Law of Torts 2 (5th ed. 1984)).  In the absence of            






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