Norman L. and Catherine J. Forste - Page 21

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          compensation for personal injuries or sickness.  However,                   
          petitioners do not argue on brief that the amount they received             
          from DHS in 1996 is excludable under section 104(a)(1) as an                
          amount received under a workers’ compensation act.15                        
               Petitioners argue that the amount Mr. Forste received from             
          DHS pursuant to the settlement agreement is excludable under                
          section 104(a)(2).  Pursuant to section 104(a)(2), gross income             
          does not include the amount of any damages received on account of           
          personal injuries or sickness, regardless of whether the amount             
          is received by suit or agreement and whether received in lump               
          sums or as periodic payments.  Damages are excludable under                 
          section 104(a)(2) provided:  (1) The underlying cause of action             
          is based upon tort or tort type rights; and (2) the damages were            



               15The regulations promulgated under sec. 104(a)(1) exclude             
          amounts received under a statute in the nature of a workers’                
          compensation act which provides compensation to employees for               
          personal injuries or sickness incurred in the course of                     
          employment.  Sec. 1.104-1(b), Income Tax Regs.  Mr. Forste did              
          not file a claim for workers’ compensation benefits.  Petitioners           
          did not offer any evidence that they had any arguable claim                 
          against DHS for workers’ compensation, nor do they make any                 
          argument on brief that the amount at issue was received under a             
          workers’ compensation act.  The amount in issue was received                
          under a settlement agreement between DHS and Mr. Forste.  An                
          agreement standing alone does not qualify as a “statute” for                
          purposes of the regulations under sec. 104(a)(1).  See Wallace v.           
          United States, 139 F.3d 1165, 1167 (7th Cir. 1998) (“courts have            
          always emphasized that the phrases ‘workers’ compensation acts’             
          and ‘statute in the nature of a workmen’s compensation act’ refer           
          exclusively to legislative and administrative enactments”);                 
          Rutter v. Commissioner, 760 F.2d 466, 468 (2d Cir. 1985), affg.             
          T.C. Memo. 1984-525.                                                        





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