Phillip Lee Allen and Carolyn F. Allen - Page 6




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          the attorney who represented petitioners in the suit against the              
          insurance company.  The letter contained a list of checks paid to             
          petitioners in the total amount of $269,467.20 and the attorney’s             
          conclusion that “The appraiser’s award was $128,084.  Therefore               
          $25,616.80 of the $130,000 could logically be for damages due to              
          the removal of the berm with the remainder ($104,383.20) being                
          bad faith”.                                                                   
               In a January 23, 1996, letter, to the examining agent,                   
          petitioners’ attorney in the insurance case attempted to recant               
          his earlier letter, stating that, notwithstanding his March 28,               
          1995, letter, the settlement payment was for neither bad faith                
          damages nor punitive damages.  In addition, the enrolled agent                
          wrote to the examining agent reiterating that the attorney’s “bad             
          faith” characterization was a mistake.  Despite the attempts to               
          correct the attorney’s statement, the examining agent concluded               
          that $104,000 of the $130,000 payment from the insurance company              
          was for punitive damages and was therefore income taxable to                  
          petitioners for 1991.                                                         
               Further, although petitioners’ claim for refund of 1991 tax              
          relied on the casualty loss provisions of section 165, during the             
          examination petitioners argued that some injury or sickness was               
          caused by the insurance company’s actions.  Under this argument,              
          petitioners contended that the $130,000 was excludable as payment             
          for physical injury under section 104.                                        






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