DeForest and Rose M. Dorroh - Page 8

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          nonemployee compensation in the amount of $60,000 representing              
          the amount paid by DFAS pursuant to the mediation agreement.                
          Petitioners did not include this payment as income on their 1997            
          Federal income tax return.  In the notice of deficiency,                    
          respondent determined that the $60,000 payment constituted gross            
          income and further determined petitioners failed to report $344             
          in interest income on their 1997 Federal income tax return.  As             
          noted earlier, petitioners conceded the unreported interest                 
          income adjustment, and respondent conceded that $5,000 of the               
          $60,000 payment was excludable from gross income.                           
               Section 104(a)(2) excludes from gross income "the amount of            
          any damages (other than punitive damages) received (whether by              
          suit or agreement and whether as lump sums or as periodic                   
          payments) on account of personal physical injuries or physical              
          sickness".  Section 1.104-1(c), Income Tax Regs., defines                   
          "damages received" as "an amount received (other than workmen's             
          compensation) through prosecution of a legal suit or action based           
          upon tort or tort type rights, or through a settlement agreement            
          entered into in lieu of such prosecution."  Amounts are                     
          excludable from gross income only when (1) the underlying cause             
          of action giving rise to the recovery is based on tort or tort              
          type rights, and (2) the damages were received on account of                
          personal injuries or sickness.  Commissioner v. Schleier, 515               
          U.S. 323, 337 (1995).                                                       





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