Allen Burditt II and Sarah Maunee S. Burditt - Page 15




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          received on account of a personal injury claim traditionally                
          involve payment for harms such as pain and suffering, emotional             
          distress, harm to reputation, or other consequential damages.               
          See United States v. Burke, supra at 239.                                   
               When determining the tax consequences of an amount paid in             
          settlement of a suit, it is the nature of the underlying claim,             
          not its validity, that determines whether the payment was                   
          received on account of personal injuries.  See id. at 237; Fabry            
          v. Commissioner, 111 T.C. 305, 308 (1998); Threlkeld v.                     
          Commissioner, 87 T.C. 1294, 1297 (1986), affd. 848 F.2d 81 (6th             
          Cir. 1988); Glynn v.Commissioner, 76 T.C. 116, 119 (1981), affd.            
          without published opinion 676 F.2d 682 (1st Cir. 1982).  In                 
          seeking the nature of the underlying claim, the court should                
          consider, “‘In lieu of what were the damages awarded?’”  Robinson           
          v. Commissioner, 102 T.C. 116, 126 (1994)(citing Raytheon Prod.             
          Corp. v. Commissioner, 144 F.2d 110, 113 (1st Cir. 1944), affg. 1           
          T.C. 952 (1943)(emphasis added)).  Whether the nature of the                
          underlying claim is for a tort type personal injury is a question           
          of fact, which is determined by considering the settlement                  
          agreement in light of all the facts and circumstances, including            
          the allegations made in the State court proceedings, the evidence           
          marshaled, the arguments made by the parties, and the intent of             
          the payor of the settlement.  See Robinson v. Commissioner, supra           
          at 127.  Paramount to this inquiry is the payor's intent in                 





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