Sudhir P. Srivastava and Elizabeth S. Pascual - Page 33

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               It is clear from the Supreme Court's decision that the issue           
          of whether punitive damages received in a tort suit are excluded            
          under section 104(a)(2) was unresolved at the time petitioners              
          filed their returns for 1991 and 1992.                                      
               Furthermore, before the decision in O'Gilvie v. United                 
          States, supra, this Court decided Estate of Moore v.                        
          Commissioner, T.C. Memo. 1994-4, revd. and remanded 53 F.3d 712             
          (5th Cir. 1995).  In Estate of Moore, we held, citing Threlkeld             
          v. Commissioner, 87 T.C. 1294 (1986), and Roemer v. Commissioner,           
          716 F.2d 693 (9th Cir. 1983), that punitive damages received in a           
          settlement of a lawsuit for malicious prosecution and invasion of           
          privacy may be excluded from gross income pursuant to section               
          104(a)(2).                                                                  
               The Court of Appeals for the Fifth Circuit reversed Estate             
          of Moore v. Commissioner, supra, holding that punitive damages              
          awarded under Texas law are not intended to compensate plaintiffs           
          for injury and are therefore not excludable under section                   
          104(a)(2).  Estate of Moore v. Commissioner, 53 F.3d at 715-716.            
               After we decided Estate of Moore, but before it was                    
          reversed, this Court decided Robinson v. Commissioner, 102 T.C.             

               19(...continued)                                                       
          received  pursuant to any suit filed on or before July 10, 1989.            
          Petitioners filed suit in 1985 and are therefore within the                 
          exception to the amendment.                                                 
               The Supreme Court decided the issue in O'Gilvie v. United              
          States, 519 U.S. 79, 117 S. Ct. 452 (1996), upon the preamendment           
          version of sec. 104(a)(2); the holding is therefore applicable to           
          petitioners in this case.                                                   




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