- 4 - Section 61(a) defines gross income broadly as "all income from whatever source derived". Gross income specifically includes compensation for services. Sec. 61(a)(1). Exclusions from income are matters of legislative grace and are construed narrowly. Commissioner v. Schleier, 515 U.S. 323, 328 (1995); Mostowy v. United States, 966 F.2d 668, 671 (Fed. Cir. 1992). A taxpayer seeking an exclusion from income must be able to point to an applicable statute and show that he comes within its terms. Section 104(a)(2) excludes from gross income "the amount of any damages received (whether by suit or agreement and whether as lump sums or as periodic payments) on account of personal injuries or sickness". The phrase "damages received" is further defined as "an amount received * * * 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." Sec. 1.104-1(c), Income Tax Regs. Thus, to qualify for the exclusion, the taxpayer must satisfy a two-prong test. The taxpayer must show that (1) the cause of action giving rise to the recovery is "based upon tort or tort type rights" and (2) the damages were received "on account of personal injuries or sickness." Commissioner v. Schleier, supra at 337. If a settlement is attributable to claims based on tort or tort type rights as well as other rights, the taxpayer bears the burden of establishing which portion of the settlement is attributable to damages received based upon tort or tort type rights. Similarly,Page: Previous 1 2 3 4 5 6 7 8 Next
Last modified: May 25, 2011