Marsha M. Bland - Page 12




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            United States v. Burke, supra at 235 n.6; Fabry v. Commissioner,                           
            supra at 309.  The Supreme Court has also noted specifically with                          
            regard to discrimination that “the intangible harms of                                     
            discrimination can constitute personal injury, and * * *                                   
            compensation for such harms may be excludable under � 104(a)(2).”                          
            Commissioner v. Schleier, supra at 332 n.6.  Intangible harms                              
            recognized as within the scope of the statute include those                                
            affecting emotions, reputation, or character.  See United States                           
            v. Burke, supra at 235 n.6; Fabry v. Commissioner, supra at 309.                           
            Hence, as a threshold matter, we acknowledge that petitioner’s                             
            alleged injuries are personal in nature.                                                   
                  However, because exclusion under section 104(a)(2) depends                           
            not only on the nature of the injuries but also on the purpose of                          
            the payment, “the critical question is, in lieu of what was the                            
            settlement amount paid.”  Bagley v. Commissioner, 105 T.C. 396,                            
            406 (1995), affd. 121 F.3d 393 (8th Cir. 1997).  In the words of                           
            this Court:  “If the settlement agreement lacks express language                           
            stating that the payment was (or was not) made on account of                               
            personal injury, then the most important fact in determining how                           
            section 104(a)(2) is to be applied is ‘the intent of the payor’                            
            as to the purpose in making the payment.”  Metzger v.                                      











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