Marsha M. Bland - Page 8




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                  For purposes of applying the above statutory and regulatory                          
            text, the U.S. Supreme Court in Commissioner v. Schleier, 515                              
            U.S. 323, 336-337 (1995), established a two-pronged test for                               
            ascertaining a taxpayer’s eligibility for the section 104(a)(2)                            
            exclusion.  As stated by the Supreme Court:  “First, the taxpayer                          
            must demonstrate 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.’”  Id. at 337.                                   
            II.  Contentions of the Parties                                                            
                  Petitioner contends that the payment she received from PSC                           
            satisfies both prerequisites for excludability under section                               
            104(a)(2).  According to petitioner, at the time of her                                    
            termination she possessed a claim against PSC under Oklahoma law                           
            for the tort of intentional infliction of emotional distress,                              
            thereby meeting the requirement of an underlying claim based on                            
            tort or tort type rights.  Petitioner then maintains that because                          
            PSC was aware of her complaints when the severance plan was                                
            offered and executed, PSC intended by that vehicle to settle her                           
            personal injury claims.  Hence, in petitioner’s view, the subject                          
            funds were received on account of her personal injuries.                                   
            Petitioner further argues that, since her only complaint against                           










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Last modified: May 25, 2011