- 17 -
Commissioner, 80 T.C. 1104 (1983). Accordingly, the payor's
intent can be discerned from the allegations made in the
complaint.
We must therefore consider the allegations made by class
members, such as petitioner, in the Complaint. We observe at
this point that the mere mention of "emotional harm" in a
complaint does not, by itself, serve to exclude the recovery from
gross income under section 104(a)(2). Clearly such a rule would
improperly expand the scope of section 104(a)(2) because the
"emotional harm" language could easily be included in every
complaint, even if such claim were only a "throwaway" claim.
What is more, the mere fact that a taxpayer suffers
"personal" injury from a defendant's conduct is insufficient to
satisfy the "on account of personal injury or sickness" test.
Commissioner v. Schleier, 515 U.S. 323 (1995). Only recovery
that is "attributable to" such personal injury is excludable from
gross income. Id.
The Supreme Court clarified the law in this regard in
Commissioner v. Schleier, supra. In that case, the Supreme Court
distinguished the recovery that a taxpayer receives as a result
of an automobile accident from the recovery that a taxpayer
receives as a result of age discrimination under the Age
Discrimination in Employment Act (ADEA). Whereas both
individuals may suffer emotional harm as a result of a
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