David R. Green and Carolyn B. Green - Page 11

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          because they asserted tort claims and a colorable claim for                 
          personal injuries, that is sufficient to sustain the exclusion of           
          the entire amount from gross income.                                        
               Respondent, on the other hand, contends that the payment               
          petitioner received pursuant to the Settlement Agreement was not            
          to settle a tort claim or to pay petitioner on account of                   
          personal injuries.  Rather, respondent contends that the payment            
          was to redress contract claims.  Thus, respondent's position is             
          that such payment fails the two-prong test under Commissioner v.            
          Schleier, supra at 337, and therefore is not excludable from                
          gross income under section 104(a)(2).                                       
               After a review of the Settlement Agreement, and the facts              
          and circumstances surrounding it, we find that there is no basis            
          to conclude that WNIC agreed to pay petitioner $17,880 per year             
          for 20 years in order to settle a tort or tort type claim, or a             
          claim for personal injuries.                                                
               The Settlement Agreement sets forth six provisions.  Under             
          the Settlement Agreement, WNIC was obligated to "make regular,              
          guaranteed monthly payments to Green in the amount of $3,000.00             
          per month for a period of Two Hundred Forty (240) months,                   
          commencing October 1, 1987."  There is no language in any part of           
          the Settlement Agreement that specifically designates any portion           
          of petitioner's annuity to be paid to settle a tort or tort type            
          claim.  Thus, we look to the intent of the payor, WNIC.                     





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