- 15 - critical to that determination. See Knuckles v. Commissioner, supra; Agar v. Commissioner, 290 F.2d 283, 284 (2d Cir. 1961), affg. per curiam T.C. Memo. 1960-21. Although the belief of the payee is relevant to that inquiry, the character of the settle- ment payment hinges ultimately on the dominant reason of the payor in making that payment. See Agar v. Commissioner, supra at 284; Fono v. Commissioner, 79 T.C. 680, 694 (1982), affd. without published opinion 749 F.2d 37 (9th Cir. 1984). The Supreme Court recently summarized the requirements of section 104(a)(2) as follows: In sum, the plain language of � 104(a)(2), the text of the applicable regulation, and our decision in Burke establish two independent requirements that a taxpayer must meet before a recovery may be excluded under � 104(a)(2). First, the taxpayer must demon- strate that the underlying cause of action giving rise to the recovery is “based upon tort or tort type rights”; and second, the taxpayer must show that the damages were received “on account of personal injuries or sickness.” [Commissioner v. Schleier, supra at 336- 337.] Each of the requirements that must be satisfied in order to qualify the settlement amounts in dispute for exclusion from income under section 104(a)(2) involves two inquiries that are similar. The dual inquiries under the first requirement are whether Mr. D’Amico’s underlying claim was based on tort or tort type rights and, if it was, whether the underlying claim gave rise to the payment by the Company of the settlement amounts in dispute. The dual inquiries under the second requirement arePage: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Next
Last modified: May 25, 2011