Francis G. Laguaite - Page 5




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          sickness.  See Commissioner v. Schleier, 515 U.S. 323, 336-337                
          (1995).                                                                       
               Where damages are received pursuant to a settlement                      
          agreement, the nature of the claim that was the actual basis for              
          settlement governs the excludability of the damages under section             
          104(a)(2).  See United States v. Burke, 504 U.S. 229, 237 (1992).             
          “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).                                           
               Assuming that petitioner may have had a potential tort type              
          claim for emotional distress or other injuries resulting from his             
          involuntary termination of employment, the crucial question is                
          whether he received the $76,740 payment on account of personal                
          injuries or sickness.                                                         
               Where, as here, the settlement agreement does not expressly              
          state the purpose for which payment was made, the most important              
          factor is the payor’s intent.  See Knuckles v. Commissioner, 349              
          F.2d 610, 613 (10th Cir. 1965), affg. T.C. Memo. 1964-33.                     
              The evidence does not indicate that APC intended to                       
         compensate petitioner for personal injuries.  To the contrary,                 
         the release, as well as correspondence between APC and                         
         petitioner, indicates that both APC and petitioner regarded the                
         payment in question as severance pay.  Neither the mode of                     
         calculating the payment, based on petitioner’s years of service                





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