Michael R. and Shelley F. Fawcett - Page 11




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          that the damages awarded were actually based on length of                   
          employment and number of hours worked by petitioner.                        
               Damages for petitioner’s personal injuries, however real and           
          distressful for petitioners, were not claimed in the class action           
          lawsuit against PayLess, nor was the Settlement Agreement                   
          intended to provide relief for such injuries.  The class action             
          notice informed petitioners that they were not required to join             
          the class action.  The notice clearly stated that “if you choose            
          not to join this suit, you are free to file your own lawsuit with           
          an attorney of your choosing.”                                              
               In order for petitioners to prevail under section 104(a)(2),           
          both components of the test, as stated above, must be satisfied.            
          Petitioners failed to show that the settlement award was paid as            
          compensation for personal injury or sickness.  Therefore, the               
          entire settlement award is includable in gross income, and                  
          petitioners are entitled to a corresponding deduction for                   
          attorney’s fees and costs under section 67(a), subject to                   
          limitations.                                                                
               We have considered all arguments by the parties, and, to the           
          extent not discussed above, conclude that they are irrelevant or            
          without merit.                                                              











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