William A and Ann M. Jacobs - Page 9




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          under section 104(a)(2).  See United States v. Burke, 504 U.S.              
          229, 237 (1992); Thompson v. Commissioner, 89 T.C. 632 (1987),              
          affd. 866 F.2d 709 (4th Cir. 1989);  Threlkeld v. Commissioner,             
          87 T.C. 1294 (1986), affd. 848 F.2d 81 (6th Cir. 1988).  The                
          determination of the nature of a claim is factual.  See Fabry               
          v. Commissioner, 111 T.C. 305 (1998).  The crucial 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).  We first look to the written terms of settlement               
          agreements to determine the origin and allocation of settlement             
          proceeds.  See Metzger v. Commissioner, 88 T.C. 834 (1987),                 
          affd. without published opinion 845 F.2d 1013 (3d Cir. 1988).               
          We may make that determination by reference to such agreement               
          when it is entered into in an adversarial context, at arm’s                 
          length, and in good faith.  See Knuckles v. Commissioner, 349               
          F.2d 610, 613 (10th Cir. 1965), affg. T.C. Memo. 1964-33.                   
                To support their claim that the liquidated damages portion            
          of the settlement was paid on account of personal injuries                  
          and/or sickness, petitioners direct our attention to the                    
          wording of the release and to petitioners’ testimony about                  
          their understanding of the settlement agreement.  Petitioners               











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