Debra Susan Dickerson - Page 10




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          existed at the time of settlement; (3) the claim encompassed                
          personal injuries; and (4) the agreement was executed in lieu of            
          the prosecution of the tort claim and on account of the personal            
          injury, rendering it a settlement rather than a mere severance              
          agreement.  See Greer v. United States, 207 F.3d 322 (6th Cir.              
          2000).                                                                      
               If a settlement is attributable to claims based on tort or             
          tort type rights as well as other rights, the taxpayer must                 
          establish which portion of the settlement is attributable to                
          damages received based on tort or tort type rights.  Similarly,             
          if the settlement may be attributable to damages received for               
          personal injuries or sickness as well as other harm, the taxpayer           
          must establish which portion of the settlement is attributable to           
          damages received for personal injuries or sickness.  See                    
          Whitehead v. Commissioner, T.C. Memo. 1980-508.                             
               When damages are received pursuant to a settlement                     
          agreement, the nature of the claim that was the actual basis for            
          settlement controls whether such damages are excludable under               
          section 104(a)(2).  See United States v. Burke, supra; Thompson             
          v. Commissioner, 866 F.2d 709, 711 (4th Cir. 1989), affg. 89 T.C.           
          632 (1987); Robinson v. Commissioner, 102 T.C. 116, 126 (1994),             
          affd. in part, revd. in part on another issue 70 F.3d 34 (5th               
          Cir. 1995).  Determination of the nature of the claim is factual.           
          See Bagley v. Commissioner, supra; Stocks v. Commissioner, 98               






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