Neil S. and Rita E. Hardin - Page 11

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          income.  Accordingly, on the basis of the record in the instant             
          case, we conclude that, pursuant to the settlement agreement, the           
          State Farm payment was intended to settle petitioner's claim                
          against State Farm under title VII.                                         
               As we have concluded that petitioner's claim was not based             
          upon tort or tort type rights, we need not address the second               
          requirement of Commissioner v. Schleier, supra, regarding the               
          nature of damages.  Accordingly, we conclude that petitioners are           
          not entitled to exclude any part of the State Farm payment                  
          pursuant to section 104(a)(2).9                                             
               The next issue to be decided is whether petitioners are                
          entitled to exclude from gross income amounts paid as legal                 
          fees.10  Petitioners contend that, as petitioner's legal fees               
          were paid to counsel from the settlement proceeds and petitioner            
          never received such fees, petitioners are entitled to exclude the           
          legal fees from their income.  Citing Alexander v. Commissioner,            
          72 F.3d 938 (1st Cir. 1995) (citing with approval McKay v.                  
          Commissioner, 102 T.C. 465 (1994), revd. on another issue without           
          published opinion 84 F.3d 433 (5th Cir. 1996)), affg. T.C. Memo.            


          9    We note that our opinion herein is consistent with prior               
          decisions of this Court, which similarly held that settlement               
          proceeds received pursuant to the Kraszewski litigation were not            
          excludable from gross income under sec. 104(a)(2).  See Raney v.            
          Commissioner, T.C. Memo. 1997-200; Clark v. Commissioner, T.C.              
          Memo. 1997-156; Martinez v. Commissioner, T.C. Memo. 1997-126;              
          Fredrickson v. Commissioner, T.C. Memo. 1997-125.                           
          10   Respondent bears the burden as to this issue.                          




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