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release do not demonstrate that any discernible portion of the
settlement proceeds was paid on account of personal injury or
sickness. Petitioner has therefore, failed to satisfy the second
prong of the Schleier test. As a result, no portion of the
settlement proceeds may be excluded from gross income under
section 104(a)(2).
Because the record does not show that any discernible
portion of petitioner’s recovery was attributable to personal
injury or sickness, we need not decide whether the underlying
civil lawsuit was based on tort or tort type rights.
II. Earned Income Credit
For the year in issue, petitioner claimed an earned income
credit based on Amanda qualifying as a foster child.
Section 32(c)(3) defines a "qualifying child" in terms of a
number of tests that must be satisfied. Among these tests is the
so-called relationship test. See sec. 32(c)(3)(A)(i), (B). As
relevant herein, an individual satisfies the relationship test if
he or she is an eligible foster child of the taxpayer. See sec.
32(c)(3)(B)(i)(III). In turn, section 32(c)(3)(B)(iii) defines
"eligible foster child" to mean an individual who the taxpayer
cares for as the taxpayer's own child and who has the same
principal place of abode as the taxpayer for the taxpayer's
entire taxable year.
In the present case we need not decide whether petitioner
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