- 10 - 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, 98Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Next
Last modified: May 25, 2011