Debra Susan Dickerson - Page 9




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               (c) Damages received on account of personal                            
               injuries or sickness.  * * *  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.                                                      
               Thus, damages may be excluded from gross income if a two-              
          prong test is satisfied.  The taxpayer must show: (1) The                   
          underlying cause of action giving rise to the recovery is based             
          on tort or tort type rights and (2) damages were received on                
          account of personal injury or sickness.  See Commissioner v.                
          Schleier, supra at 336-337;5 Wesson v. United States, 48 F.3d               
          894, 901-902 (5th Cir. 1995); Bagley v. Commissioner, 105 T.C.              
          396, 416 (1995), affd. 121 F.3d 393 (8th Cir. 1997).  These two             
          independent requirements must both be satisfied in order for the            
          exclusion under section 104(a)(2) to apply.                                 
               Furthermore, the Schleier test has been divided into its               
          disparate elements by some courts.  Thus, the taxpayer must show:           
          (1) There was an underlying claim sounding in tort; (2) the claim           


               5 In Commissioner v. Schleier, 515 U.S. 323, 336-337 (1995),           
          the Supreme Court distinguished the recovery that a taxpayer                
          receives as a result of an automobile accident from the recovery            
          that a taxpayer receives as a result of age discrimination under            
          the Age Discrimination in Employment Act of 1967 (ADEA), Pub. L.            
          90-202, 81 Stat. 602.  Whereas both individuals may suffer                  
          emotional harm as a result of a defendant's wrongdoing, only the            
          accident victim's recovery can be considered as received "on                
          account of” personal injury because the ADEA does not provide               
          recovery for personal injury.  Therefore, the recovery received             
          by the ADEA claimant is not on account of personal injury.                  






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