- 33 - 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.Page: Previous 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 Next
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