Salvatore J. D'Amico and Shirley E. D'Amico - Page 13




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          section 104(a) to support their position that both the $10,000              
          payment and the $23,255 payment (collectively, settlement amounts           
          in dispute) are to be excluded from their income for 1994.                  
          According to petitioners, those amounts were paid to Mr. D’Amico            
          to settle his claims against the Company for his physical inju-             
          ries.                                                                       
               Section 61(a) provides the following sweeping definition of            
          the term “gross income”:  “Except as otherwise provided in this             
          subtitle, gross income means all income from whatever source                
          derived”.  Not only is section 61(a) broad in its scope, see                
          Commissioner v. Schleier, 515 U.S. 323, 328 (1995), exclusions              
          from gross income must be narrowly construed, see id.; United               
          States v. Burke, 504 U.S. 229, 248 (1992).                                  
               Section 104(a)(2) on which petitioners rely provides that              
          gross income does not include “the amount of any damages received           
          (whether by suit or agreement and whether as lump sums or as                
          periodic payments) on account of personal injuries or sickness”.            

               4(...continued)                                                        
          market value of the leased automobile is $12,000.  We reject                
          petitioners’ alternative contention.  First, that contention was            
          raised for the first time on brief, and respondent did not have             
          the opportunity to introduce evidence with respect to it.                   
          Second, there is nothing in the record to support petitioners’              
          position on brief that the fair market value of the leased                  
          automobile is $12,000.  Third, on the record before us, we find             
          that it is the cost to the Company of purchasing the leased                 
          automobile which is the benefit that Mr. D’Amico received under             
          the settlement agreement and which we hold below is to be                   
          included in petitioners’ taxable income for 1994.                           





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