John P. and Carolyn L. Raney - Page 10

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               We have considered all of petitioners' remaining arguments             
          and find them to be without merit.6                                         
               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 from gross income any part of the State             
          Farm payment pursuant to section 104(a)(2).7                                
               To reflect the foregoing,                                              

                                                  Decision will be entered            
                                             under Rule 155.                          











          6    Petitioners argue, inter alia, that, pursuant to sec. 3509,            
          respondent should look to State Farm for the tax liability on the           
          State Farm payment.  Petitioner, however, has never been an                 
          employee or trainee of State Farm.  Accordingly, as to                      
          petitioner, State Farm has no duty to withhold taxes pursuant to            
          sec. 3509.                                                                  
          7    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 Clark v.            
          Commissioner, T.C. Memo. 1997-156; Martinez v. Commissioner, T.C.           
          Memo. 1997-126; Fredrickson v. Commissioner, T.C. Memo. 1997-125.           




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