Richard D. Waters - Page 9




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          Commissioner, T.C. Memo. 1997-315.  Petitioner also relies on               
          section 8 of the Settlement Agreement that states that "all                 
          settlement proceeds are paid to plaintiffs on account of personal           
          injuries".                                                                  
               Section 104(a)(2) provides that gross income does not                  
          include "the amount of any damages received (whether by suit or             
          agreement* * *) on account of personal injuries or sickness".               
          Under section 1.104-1(c), Income Tax Regs., "damages" means a               
          recovery "based upon tort or tort type rights".  See also                   
          Commissioner v. Schleier, 515 U.S. 323 (1995).  While personal              
          injuries, under section 104(a)(2), may generally include both               
          physical as well as nonphysical emotional injuries, such as "pain           
          and suffering, emotional distress, harm to reputation, or other             
          consequential damages (e.g., a ruined credit rating)", the                  
          Supreme Court has distinguished such personal injuries from                 
          "legal injuries of an economic character" such as those arising             
          out of the unlawful deprivation of the opportunity to earn wages            
          through a wrongful termination.  United States v. Burke, 504 U.S.           
          229, 239, 245 (1992).  Damages received for lost wages in                   
          connection with the settlement of economic rights, such as those            
          arising out of a breach of contract, are not excludable from                
          income under section 104(a)(2).  See Robinson v. Commissioner,              
          102 T.C. 116, 126 (1994), affd. in part, revd. in part on another           







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