- 8 - 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section 104(a)(2) because Xircom paid those amounts to replace wages petitioner would have earned if Xircom had not withdrawn its job offer.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).Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 Next
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