Jack and Janet Freeman - Page 11




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             that the scope of excludable damages is limited to those                 
             received through prosecution of an action based upon tort                
             or tortlike rights:                                                      

                  The term "damages received (whether by suit or                      
                  agreement)" 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 such prosecution.  [Sec. 1.104-                     
                  1(c), Income Tax Regs.]                                             

             After reviewing section 104(a)(2) and the above regulation,              
             the U.S. Supreme Court stated that a taxpayer must meet the              
             following two independent requirements before a recovery                 
             may be excluded under section 104(a)(2):                                 

                  First, the taxpayer must demonstrate that the                       
                  underlying cause of action giving rise to the                       
                  recovery is "based upon tort or tort type                           
                  rights"; and second, the taxpayer must show that                    
                  the damages were received "on account of personal                   
                  injuries or sickness."  *  *  *  [Commissioner v.                   
                  Schleier, 515 U.S. 323, 337 (1995).]                                

                  Petitioners acknowledge that the damages of $300,000                
             awarded by the jury were based entirely on petitioner's                  
             claim for breach of a covenant of good faith and fair                    
             dealing and that the amount paid by Thrifty included                     
             interest of $14,173.91.  Petitioners' brief states:                      

                  On May 23, 1994, the jury returned a verdict for                    
                  Petitioner on the Second Cause of Action, Breach                    
                  of the Covenant of Good Faith and Fair Dealing in                   





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