Sudhir P. Srivastava and Elizabeth S. Pascual - Page 27

                                       - 27 -                                         
          vacated and remanded without published opinion 84 F.3d 433 (5th             
          Cir. 1996), as authority for deducting the costs of litigating a            
          personal injury suit as a business expense.  We disagree.                   
               In McKay, the taxpayer was an employee who brought suit for            
          wrongful termination, breach of employment contract, RICO, and              
          punitive damages.  The taxpayer was awarded damages for lost                
          compensation, "future" damages, and punitive damages for                    
          wrongful, malicious, and oppressive acts by his employer.  After            
          trial, the parties settled, and the settlement agreement provided           
          that sums were paid in extinguishment of the taxpayer's tort                
          claim for wrongful discharge and extinguishment of his breach of            
          contract claim.  In the settlement agreement, the parties agreed            
          that the amount attributable to the wrongful discharge claim                
          represented compensatory damages excludable under section                   
          104(a)(2), and the amount allocable to the breach of contract               
          claim was includable in income under section 61.15  Finding that            
          the allocations were the result of an arm's-length negotiation              
          between hostile adversaries, this Court accepted the express                
          allocations in the settlement agreement.  Id. at 487.                       


               15  The Court of Appeals for the Fifth Circuit vacated our             
          decision in this case.  Citing Commissioner v. Schleier, 515 U.S.           
          323 (1995), the Court of Appeals held that the damages                      
          attributable to the taxpayer's wrongful discharge claim were not            
          excludable under sec. 104(a)(2), because they were not received             
          on account of a personal injury.  McKay v. Commissioner, 84 F.3d            
          433 (5th Cir. 1996), vacating and remanding without published               
          opinion 102 T.C. 465 (1994).                                                





Page:  Previous  17  18  19  20  21  22  23  24  25  26  27  28  29  30  31  32  33  34  35  36  Next

Last modified: May 25, 2011