Michael R. and Shelley F. Fawcett - Page 8




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          settlement award of $30,599 is excludable from income under                 
          section 104(a)(2).                                                          
               Section 61 broadly defines gross income to include all                 
          income from whatever source derived, except as otherwise                    
          provided.  Statutory exclusions from income are narrowly                    
          construed.  Commissioner v. Schleier, 515 U.S. 323, 328 (1995).             
               Section 104(a)(2) provides that gross income does not                  
          include “the amount of any damages received (whether by suit or             
          by agreement * * * ) on account of personal injuries or                     
          sickness”.  Section 1.104-1(c), Income Tax Regs., provides that             
          the term “damages received” “means an amount received (other than           
          workmen’s compensation) 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 prosecution.”                  
          Petitioner’s settlement proceeds may be excluded from gross                 
          income only if she shows:  (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, supra at 337.              
               The first part of the test “examines the legal basis of the            
          claim for tort-like characteristics, focusing on the scope of               
          remedies available under the statutory scheme.”  Dotson v. United           
          States, 87 F.3d 682, 685 (5th Cir. 1996); see also Brennan v.               
          Commissioner, T.C. Memo. 1997-317.  The second requirement “tests           






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