Julius R. Phillilps and Marcia G. Phillips - Page 8

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               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.                                                      
               Thus, an amount may be excluded from gross income only when            
          it was received both:  (1) Through prosecution or settlement of             
          an action based upon tort or tort type rights; and (2) on account           
          of personal injuries or sickness.  Commissioner v. Schleier,                
          supra; Wesson v. United States, 48 F.3d 894, 901-902 (5th Cir.              
          1995); Bagley v. Commissioner, 105 T.C. 396, 416 (1995).                    
               Where damages are received pursuant to a settlement                    
          agreement, the nature of the claim that was the actual basis for            
          settlement controls whether such damages are excludable under               
          section 104(a)(2).  United States v. Burke, 504 U.S. 229, 237               
          (1992); Thompson v. Commissioner, 866 F.2d 709, 711 (4th Cir.               
          1989), affg. 89 T.C. 632 (1987); Robinson v. Commissioner, 102              
          T.C. 116, 126 (1994), affd. in part and revd. in part 70 F.3d 34            
          (5th Cir. 1995).  "[T]he critical question is, in lieu of what              
          was the settlement amount paid?"  Bagley v. Commissioner, supra             
          at 406.                                                                     
               Determination of the nature of the claim is factual.  Id.;             
          Stocks v. Commissioner, 98 T.C. 1, 11 (1992).  The first                    
          requirement is the existence of a claim based upon tort or tort             
          type rights.  Commissioner v. Schleier, supra at 335.  The claim            
          must be bona fide, but not necessarily valid; i.e., sustainable.            





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