Alex Morgan Foster - Page 8

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          income.  According to respondent, petitioner has not established            
          that this amount was received as damages on "account of personal            
          injuries", as defined under section 104(a)(2).  Petitioner                  
          disagrees, arguing that the settlement was meant to address a               
          plethora of tort claims against ABMI, including "wrongful                   
          termination of employment under California law * *  * retaliatory           
          discharge, First Amendment claims, malicious prosecution,                   
          defamation, disparagement, trade libel, emotional distress, and             
          national origin discrimination."                                            
               Although section 61(a) defines gross income to include "all            
          income from whatever source derived," an exception may be found             
          under section 104(a)(2) and the regulations thereunder.  Section            
          104(a)(2) provides that "the amount of any damages received                 
          (whether by suit or agreement * * *) on account of personal                 
          injuries or sickness" is excludable from gross income.  Section             
          1.104-1(c), Income Tax Regs., provides that:                                

               The term "damages received (whether by suit or                         
               agreement)" means an amount received (other than                       
               workmen'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.                                                      

               In determining whether a settlement payment was intended to            
          compensate for personal injuries, we are not concerned with the             
          validity of the claims settled by the settlement or legal suit.             
          Seay v. Commissioner, 58 T.C. 32, 37 (1972).  Rather, we focus on           
          the nature of the matter settled.  Id. For purposes of section              
          104(a)(2), we look to State law (here, California law) to decide            




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