Clarence D. Kightlinger - Page 17

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          Commissioner, 80 T.C. 1104 (1983).  Accordingly, the payor's                
          intent can be discerned from the allegations made in the                    
               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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