Sigitas J. Banaitis - Page 10




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          104(a)(2).  However, petitioner’s argument assumes that the                 
          origin of the claim is the only relevant inquiry.  A two-part               
          test for the section 104(a)(2) exclusion was established in                 
          Commissioner v. Schleier, 515 U.S. 323, 333 (1995).  Schleier               
          requires that, in addition to the law suit’s being based upon a             
          tort claim, the damages received must have been “on account of              
          personal injuries or sickness”.  Id.                                        
               The factual circumstances in this case reflect that                    
          petitioner’s economic damages were not “on account of personal              
          injuries or sickness”.  Rather, petitioner’s economic damages               
          were intended to replace wages and other compensation lost when             
          he was forced to leave his job.  While in some circumstances                
          economic damages measured by lost wages can satisfy the second              
          prong of the Schleier test, petitioner’s economic damages do not.           
          For instance, if a taxpayer were unable to work as a direct                 
          result of his physical injuries, the economic damages he received           
          to replace his lost wages would be excludable.  Id.; Rev. Rul.              
          85-97, 1985-2 C.B. 50.  In short, the taxpayer’s physical                   
          injuries would have been the direct cause of his inability to               
          work.                                                                       
               Although petitioner was forced to leave his job because of a           
          tort and he had manifestations of emotional distress, he was not            
          forced to leave his job because of those injuries.  Rather, he              
          was forced to leave because he refused to disclose confidential             






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