Nancy J. Vincent - Page 12

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          to, and did not, conclude Whittier’s actions caused or                      
          exacerbated her ulcers and thereby inflicted upon her a physical            
          injury.  We find that the jury did not conclude Whittier’s                  
          actions caused her any physical injury, and it awarded damages              
          solely on the basis of Whittier’s discriminatory actions which              
          caused her lost wages and emotional distress, neither of which              
          provide a basis for exclusion from gross income.6  Thus, the jury           
          verdict underlying the settlement does not support any                      
          apportionment of the settlement to “personal physical injury”               
          damages excludable from gross income under section 104(a)(2).               
               Petitioner invites the Court to look solely at the                     
          settlement agreement to determine the characterization of the               
          $240,000.  We decline to do so.  In Robinson v. Commissioner,               
          supra, the taxpayers sued a state bank for failing to release a             
          lien on their property.  After the jury returned a verdict in               
          their favor for approximately $60 million, including $6 million             
          for lost profits, $1.5 million for mental anguish, and $50                  
          million in punitive damages, the parties settled.  The final                
          judgment prepared by the parties allocated 95 percent of the                
          settlement to mental anguish and 5 percent to lost profits.  We             

               6 Any damages received on account of emotional distress are            
          excludable under sec. 104(a)(2) only to the extent that                     
          petitioner paid for medical care as to the emotional distress.              
          See flush language of sec. 104(a).  The record shows that                   
          petitioner’s insurance paid her medical bills.  Her emotional               
          distress claims therefore do not give rise to excludable income             
          under sec. 104(a)(2).                                                       





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