Estate of Kenneth F. Schoeneman - Page 5




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               Kenneth did not report the payments on his returns.  He died           
          on July 14, 1995, a resident of Pennsylvania.                               
                                       OPINION                                        
               Section 104(a)(2) provides that 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”.  Thus, a taxpayer may            
          exclude a recovery from gross income when he can show that:  (1)            
          The “underlying cause of action giving rise to the recovery is              
          ‘based upon tort or tort type rights’”, and (2) “the damages were           
          received ‘on account of personal injuries or sickness.’”                    
          Commissioner v. Schleier, 515 U.S. 323, 337 (1995) (quoting                 
          United States v. Burke, 504 U.S. 229, 234 (1992)).                          
               The estate contends that the settlement payments were                  
          damages received on account of personal injuries and, thus, are             
          excludable pursuant to section 104(a)(2).  Respondent contends              
          that the $104,000 payments are not excludable because they were             
          received on account of economic, rather than personal, injuries.            
          Respondent further contends that no personal injury was alleged             
          in a complaint by Kenneth.  In support of his contentions,                  
          respondent asserts that the Orphans’ Court did not have                     
          jurisdiction over tort damages and that Kenneth “could not have             
          recovered personal injury damages had he actually filed a RICO              
          complaint.”  We reject respondent’s contentions.  Our focus is              






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