Donna J. Collins - Page 10




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          MISC for 1994 showing that it had paid him nonemployee                      
          compensation of $59,163 suggests that Xircom thought those                  
          amounts were a substitute for wages.  Lost wages are not excluded           
          from income under section 104(a)(2) when received as damages                
          “pursuant to the settlement of economic rights arising out of a             
          contract”.  Robinson v. Commissioner, 102 T.C. 116, 126 (1994),             
          revd. on an issue not relevant herein 70 F.3d 34 (5th Cir. 1995).           
          In contrast, lost wages recovered on behalf of an individual who            
          is unable to work because of a personal injury, such as an                  
          automobile accident, may be excludable.  See Commissioner v.                
          Schleier, 515 U.S. 323, 329-330 (1995).                                     
               Petitioner points out that Hamby testified in an earlier               
          deposition that Xircom made the payments to prevent further harm            
          to petitioner.  Petitioner contends that Hamby’s use of the term            
          “harm” shows that the payments were for personal injury or                  
          sickness.  We disagree.  We believe the “harm” Hamby referred to            
          was the loss of wages.                                                      
               Hamby and Holliday testified that Xircom paid petitioner               
          solely to replace wages that he would have earned.  Xircom had no           
          financial interest in the characterization of its payments to               
          petitioner because it could deduct them whether or not petitioner           
          could exclude them from income.  We find the testimony of Hamby             
          and Holliday to be credible.                                                








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