Salvatore J. D'Amico and Shirley E. D'Amico - Page 15




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          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 are               





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