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* * * * * * *
Second, and more importantly, the holding of Burke is
narrower than [appellee] suggests. In Burke, following the
framework established in the Internal Revenue Service
regulations, we noted that � 104(a)(2) requires a
determination whether the underlying action is "based upon
tort or tort type rights." * * * In so doing, however, we
did not hold that the inquiry into "tort or tort type
rights" constituted the beginning and end of the analysis.
In particular, though Burke relied on Title VII's failure to
qualify as an action based upon tort type rights, we did not
intend to eliminate the basic requirement found in both the
statute and the regulation that only amounts received "on
account of personal injuries or sickness" come within �
104(a)(2)'s exclusion. Thus, though satisfaction of Burke's
"tort or tort type" inquiry is a necessary condition for
excludability under � 104(a)(2), it is not a sufficient
condition. [Fn. ref. omitted.]
Because the record does not establish that the settlement
recovery was attributable to any personal injury, we need not
decide whether the underlying class action was tort-type.
4. Conclusion
Consistent with the requirement that exclusions from income
are to be narrowly construed, we hold that the settlement
proceeds received by petitioner are not excludable from gross
income under section 104(a)(2).
Petitioner has raised other arguments that we have
considered in reaching our decision. To the extent that we have
not discussed these arguments, we find them to be without merit.
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