Donna J. Collins - Page 8




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               Respondent contends that petitioners may not exclude the               
          Xircom payments from income under section 104(a)(2) because                 
          Xircom paid those amounts to replace wages petitioner would have            
          earned if Xircom had not withdrawn its job offer.  We agree with            
          respondent for reasons discussed next.5                                     
               Gross income does not include the amount of any damages                
          received (whether by suit or agreement and whether as lump sums             
          or as periodic payments) on account of personal injuries or                 
          sickness.  Sec. 104(a)(2).  We decide the tax treatment of the              
          Xircom payments by considering in lieu of what these amounts were           
          paid.  Bagley v. Commissioner, 105 T.C. 396, 406 (1995), affd.              
          121 F.3d 393 (8th Cir. 1997).                                               
               The April 18, 1994, agreement between petitioner and Xircom            
          does not state that the payments were on account of personal                
          injury or sickness.  Where a settlement agreement is silent as to           
          whether a payment was made on account of a personal injury, the             
          most important factor in determining the application of section             
          104(a)(2) is the intent of the payor.  Knuckles v. Commissioner,            
          349 F.2d 610, 613 (10th Cir. 1965), affg. T.C. Memo. 1964-33;               
          Agar v. Commissioner, 290 F.2d 283, 284 (2d Cir. 1961), affg. per           


               5  Sec. 7491 applies to court proceedings arising in                   
          connection with examinations commencing after July 22, 1998.                
          Petitioners do not contend that respondent bears the burden of              
          proving that sec. 104(a)(2) does not apply, and they introduced             
          no evidence establishing that the examination in this case                  
          commenced after July 22, 1998.  Accordingly, petitioners bear the           
          burden of proving that sec. 104(a)(2) applies.  Rule 142(a)(1).             





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