Joseph Henry Metelski - Page 6




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                                               OPINION                                                 
                  Except as otherwise provided, gross income includes income                           
            from whatever source derived.  See sec. 61(a); Commissioner v.                             
            Glenshaw Glass Co., 348 U.S. 426 (1955).  The term “gross income”                          
            is broadly construed.  Commissioner v. Schleier, 515 U.S. 323,                             
            327-328 (1995).  Generally, severance pay fits within the                                  
            definition of gross income.  See, e.g., Taggi v. United States,                            
            35 F.3d 93 (2d Cir. 1994); Glynn v. Commissioner, 76 T.C. 116                              
            (1981) affd. without published opinion 676 F.2d 682 (1st Cir.                              
            1982).                                                                                     
                  On the other hand, gross income does not include “the amount                         
            of any damages received (whether by suit or agreement and whether                          
            as lump sums or as periodic payments) on account of personal                               
            injuries or sickness”.  Sec. 104(a)(2).  To qualify for exclusion                          
            under that section, “damages” must be "received * * * through                              
            prosecution of a legal suit or action based upon tort or tort                              
            type rights, or through a settlement agreement entered into in                             
            lieu of such prosecution.”  Sec. 1.104-1(c), Income Tax Regs.                              
            Under section 104(a)(2), a taxpayer may exclude damages from                               
            income only if:  (1) The underlying claim that gave rise to the                            
            damages was based upon tort or tort type rights; and (2) the                               
            damages were received on account of personal injuries or                                   
            sickness.  See Commissioner v. Schleier, supra at 333-334; Bagley                          
            v. Commissioner, 105 T.C. 396, 416 (1995), affd. 121 F.3d 393                              






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