Walter E. Hess and Helen L. Hess - Page 12

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          extent that he did, the funds are excludable from his gross                 
          income.  Sec. 104(a)(2).  To the extent that he did not, the                
          funds are includable in his gross income.  Sec. 61(a).  Because             
          respondent determined that none of the proceeds are excludable              
          from petitioner's gross income under section 104(a)(2),                     
          petitioner must prove otherwise.  Rule 142(a); Welch v.                     
          Helvering, 290 U.S. 111, 115 (1933); Robinson v. Commissioner,              
          102 T.C. 116, 124 (1994), affd. in part, revd. in part on an                
          issue not relevant herein and remanded 70 F.3d 34 (5th Cir.                 
          1995).                                                                      
               Petitioner argues that the settlement proceeds are                     
          excludable from his gross income because the settlement agreement           
          states explicitly that he received the proceeds for a personal              
          injury.  Petitioner alleges that his litigation with Balfour was            
          adversarial and that he entered into the allocation set forth in            
          the settlement agreement to "maximize his relatively meager                 
          recovery".  Petitioner alleges that his cause of action against             
          Balfour for constructive discharge was real.  Respondent argues             
          that none of the $425,000 is excludable from petitioner's gross             
          income because none of it was paid to him for a personal injury.            
          Respondent argues that the allocation set forth in the settlement           
          agreement should be disregarded because it was not the product of           
          arm's-length negotiations between Balfour and petitioner.                   








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