Stanley and Gail Laber - Page 6

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            by agreement * * * ) on account of personal injuries or                                   
            sickness".  Section 1.104-1(c), Income Tax Regs., provides that                           
            the term "damages received" "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 prosecution."                                
            Petitioner's settlement proceeds may be excluded from gross                               
            income only if petitioners show that:  (1) the underlying 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.                                                                                   
                  Whether damages received pursuant to a settlement agreement                         
            are excludable under section 104(a)(2) depends on the nature of                           
            the underlying claim, not the validity of such claim.  United                             
            States v. Burke, 504 U.S. 229, 237 (1992).  Determination of the                          
            nature of the claim is factual.  Bagley v. Commissioner, 105 T.C.                         
            396 (1995), affd. 121 F.3d 393 (8th Cir. 1997).  Where the                                
            settlement agreement lacks express language stating what the                              
            payment was made on account of, the most important element is the                         
            intent of the payor.  Knuckles v. Commissioner, 349 F.2d 610                              
            (10th Cir. 1965), affg. T.C. Memo. 1964-33; Robinson v.                                   
            Commissioner, 102 T.C. 116, 126 (1994), affd. in part and revd.                           
            in part 70 F.3d 34 (5th Cir. 1995).                                                       






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