Norman L. and Catherine J. Forste - Page 2

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               evidence that $25,130 was received on account of tort                  
               or tort type personal injuries.  Therefore, the burden                 
               of proof with respect to that amount shifted to R, and                 
               R did not meet his burden of proof with respect to that                
               amount.  P did not produce credible evidence with                      
               respect to the amount that he received in excess of                    
               $25,130.  Thus, P bears the burden of proof regarding                  
               the amount in excess of $25,130, and P has failed to                   
               prove that this amount is excludable from gross income                 
               under sec. 104(a)(2), I.R.C.                                           
                    Held, further, R is not equitably estopped from                   
               arguing that part of the settlement payment is not                     
               excluded from income under sec. 104(a)(2), I.R.C.                      

               David M. Fogel and Robert R. Rubin, for petitioners.                   
               Steven J. Mopsick, for respondent.                                     


                       MEMORANDUM FINDINGS OF FACT AND OPINION                        

               RUWE, Judge:  Respondent determined a deficiency of $11,576            
          in petitioners’ Federal income tax and an accuracy-related                  
          penalty of $2,315 pursuant to section 6662(a)1 for 1996.                    
          Respondent concedes the accuracy-related penalty.  The issue for            
          decision is whether any of the money received by Mr. Forste in              
          1996 as a result of a settlement between him and his former                 
          employer was properly excluded from gross income under section              
          104(a)(2) as damages received on account of personal injuries or            
          sickness.                                                                   



               1All section references are to the Internal Revenue Code in            
          effect for the taxable year in issue, and all Rule references are           
          to the Tax Court Rules of Practice and Procedure.                           




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