- 8 - settlement agreement entered into in lieu of such prosecution." Petitioner's settlement proceeds of $18,120 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. Both elements of this two-part test must be satisfied before a taxpayer is allowed to exclude amounts received from gross income. In the case of amounts received pursuant to a settlement agreement, the nature of the underlying claim, not the validity of such claim, determines whether it is excludable under section 104(a)(2). 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). A key question to ask is in lieu of what were the damages paid. Church v. Commissioner, 80 T.C. 1104 (1983). Where the settlement agreement lacks express language stating the reason for the payment, the most important element is the intent of the payor. Knuckles v. Commissioner, 349 F.2d 610, 613 (10th Cir. 1965), affg. T.C. Memo. 1964-33. Although the payee's belief is relevant to this inquiry, the ultimate character of the payment hinges on the payor's dominant reason for making the payment. Fono v. Commissioner, 79 T.C. 680 (1982), affd. without publishedPage: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Next
Last modified: May 25, 2011