Cheryl Denese Brewer - Page 7

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          entitled to claim legal fees in the amount of $40,620 as a                  
          miscellaneous itemized deduction.                                           
                                       OPINION                                        
          Issue 1.  Excludability of Settlement Proceeds                              
               The first issue for decision is whether petitioner is entitled         
          to exclude from gross income, pursuant to section 104(a)(2), amounts        
          received in settlement of a class action suit.  Petitioner contends         
          that she is so entitled.  Respondent disagrees.                             
               Except as otherwise provided, gross income includes income from        
          all sources.  Sec. 61; Commissioner v. Glenshaw Glass Co., 348 U.S.         
          426, 429-430 (1955).  Although section 61(a) is to be broadly               
          construed, statutory exclusions from income must be narrowly                
          construed.  Commissioner v. Schleier, 515 U.S. 323, 327-328 (1995).         
               Pursuant to section 104(a)(2), gross income does not include           
          "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 regulations provide that "The          
          term 'damages received (whether by suit or agreement)' means 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, in order to exclude damages from gross        
          income pursuant to section 104(a)(2), the taxpayer must prove that:         
          (1) The underlying cause of action is based upon tort or tort type          





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