Quantum Company Trust - Page 11




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               The applicable regulations provide that “The term ‘damages             
          received (whether by suit or agreement)’ means an amount 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.            
          Thus, in order to exclude damages from gross income pursuant to             
          section 104(a)(2), the taxpayer must prove:  (1) The underlying             
          cause of action is based upon tort or tort type rights, and (2) the         
          damages were received on account of personal injuries or sickness.          
          See Commissioner v. Schleier, 515 U.S. 323, 336-337 (1995).                 
               Where amounts are received pursuant to a settlement agreement,         
          the nature of the claim that was the actual basis for settlement            
          controls whether such amounts are excludable from gross income              
          under section 104(a)(2).  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). This                   
          determination is a factual inquiry.  See Robinson v. Commissioner,          
          102 T.C. 116, 127 (1994), affd. in part, revd. in part on another           
          ground and remanded 70 F.3d 34 (5th Cir. 1995).                             
               We now turn our attention to the settlement that Mr. Norton            
          received by virtue of the release agreement.  Mr. Norton testified          
          that he believed that the settlement was made on account of                 
          personal injuries.  On the other hand, the attorney for the State           








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