Sudhir P. Srivastava and Elizabeth S. Pascual - Page 19

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          as petitioner's attorneys could not be parties in the cause of              
          action and did not otherwise have rights in the cause of action             
          equal to those of petitioner, in the terms of Lucas v. Earl,                
          supra, the attorneys did not own any portion of the tree from               
          which the settlement proceeds were derived.                                 
               Accordingly, we find that petitioners realized benefit from            
          the entire amount of the settlement proceeds, and they may not              
          exclude from their gross income the portion of the settlement               
          proceeds paid to Branton & Hall and Spears.                                 
          Issue 2.  Whether Under Section 104(a)(2) Petitioners May Exclude           
                    the Entire Settlement Amount From Their Gross Income              
               Respondent and petitioners agree that the amount received by           
          petitioner for actual damages is excludable from petitioners'               
          income under section 104(a)(2).                                             
               Respondent determined that the $8,500,000 settlement amount            
          should be allocated proportionally to the judgment of $11,500,000           
          in actual damages, $17,500,000 in punitive damages, and                     
          prejudgment interest of $2,597,201.9                                        
               Petitioners assert that as $8,500,000 is exactly the amount            
          that petitioner initially pled as actual damages, and as it is              


               9  We note that this method of allocation was approved in              
          Robinson v. Commissioner, 70 F.3d 34, 38 (5th Cir. 1995), affg.             
          in part, revg. in part and remanding 102 T.C. 116 (1994); see               
          also Rozpad v. Commissioner, T.C. Memo. 1997-528 (the judgment,             
          albeit not final, nonetheless furnishes an adequate guideline for           
          allocation by the Commissioner to the extent that it is composed            
          of both compensatory damages and prejudgment interest), affd. __            
          F.3d __ (1st Cir. Aug. 25, 1998).                                           




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