Jared R. and Naylene M. Nield - Page 18




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          explanation to be incredible.  We do not believe that if Ms.                
          Nield had communicated to her attorney that she suffered personal           
          physical injuries related to her employment, her attorney would             
          have failed to allege any such injuries in the complaint, espe-             
          cially since Ms. Nield’s attorney filed the complaint on her                
          behalf in December 1996 after Congress amended section 104(a)(2)            
          to require that any amounts received after August 20, 1996, be              
          received on account of personal physical injuries or physical               
          sickness in order to be excludable from gross income.  See Small            
          Business Job Protection Act of 1996, Pub. L. 104-188, sec. 1605,            
          110 Stat. 1755, 1838-1839.7                                                 

               Another example of Ms. Nield’s testimony that we find to be            
          questionable is her testimony that her attorney advised her that            
          the tax law did not require her to include the settlement amount            
          at issue in gross income.  That testimony is belied by the                  
          settlement agreement which required Goer to issue Form 1099 to              

               7Nowhere in the complaint is there an allegation that Ms.              
          Nield suffered any personal physical injuries.  In fact, the only           
          use of the word “physical” in the complaint is an allegation that           
          Goer caused Ms. Nield “severe and grievous mental and emotional             
          harm which in turn resulted in severe physical consequences”.               
          That claim in Ms. Nield’s complaint was a claim for damages on              
          account of “severe and grievous mental and emotional harm”.  Sec.           
          104(a) provides that emotional distress is not to be treated as a           
          physical injury or physical sickness for purposes of sec.                   
          104(a)(2).  In this connection, the legislative history of the              
          1996 amendment states:  “It is intended that the term emotional             
          distress includes symptoms (e.g., insomnia, headaches, stomach              
          disorders) which may result from such emotional distress.”  H.              
          Conf. Rept. 104-737, at 301 n.56 (1996), 1996-3 C.B. 741, 1041              
          n.56.                                                                       





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