Carl J. Fabry and Patricia P. Fabry - Page 6

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          whether petitioners properly excluded the $500,000 payment from             
          gross income.                                                               
               Petitioners bear the burden of proof.  Rule 142(a).                    
               B.  General Rules                                                      
               Section 61(a) provides that, except as otherwise provided,             
          “gross income” means “all income from whatever source derived”.             
          Sec. 61(a).  With an exception not here relevant, section                   
          104(a)(2) provides that “the amount of any damages received                 
          (whether by suit or agreement * * * ) on account of personal                
          injuries or sickness” is excludable from gross income.  The                 
          regulations promulgated under section 104(a)(2) provide:  “The              
          term ‘damages received (whether by suit or agreement)’ 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 such prosecution.”  Sec. 1.104-1(c), Income Tax Regs.  To           
          determine whether any payment received in settlement of a lawsuit           
          is excludable under section 104(a)(2), we consider the nature of            
          the claim that was the basis for the settlement, not the validity           
          of the claim.  E.g., Metzger v. Commissioner, 88 T.C. 834, 847              
          (1987), affd. without published opinion 845 F.2d 1013 (1988).               
          “If the settlement agreement lacks express language stating that            
          the payment was (or was not) made on account of personal injury,            
          then the most important fact in determining how section 104(a)(2)           





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