Norman L. and Catherine J. Forste - Page 22

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          received on account of personal injuries or sickness.                       
          Commissioner v. Schleier, 515 U.S. at 337.                                  
               Where an amount is received pursuant to a settlement                   
          agreement, the proper focus is on the nature of the claim that              
          was the actual basis for settlement.16  United States v. Burke,             
          504 U.S. 229, 237 (1992); Seay v. Commissioner, 58 T.C. 32, 37              
          (1972).  This determination is factual and is generally made by             
          reference to the settlement agreement in light of the surrounding           
          circumstances.  Robinson v. Commissioner, 102 T.C. 116, 126                 
          (1994), affd. in part, revd. in part on another ground and                  
          remanded 70 F.3d 34 (5th Cir. 1995).  The critical question is,             
          in lieu of what was the settlement amount paid?  Bagley v.                  
          Commissioner, 105 T.C. 396, 406 (1995), affd. 121 F.3d 393 (8th             
          Cir. 1997).  To be excluded under section 104(a)(2), the                    
          settlement amount must have been paid in settlement of the tort             
          or tort type claims of Mr. Forste, and it must have been received           
          on account of his personal injuries.  See D’Amico v.                        
          Commissioner, T.C. Memo. 1999-374.                                          
               A “tort” is “a ‘civil wrong, other than breach of contract,            
          for which the court will provide a remedy in the form of an                 
          action for damages.’”  United States v. Burke, supra at 234.                

               16In the context of a settlement agreement, sec. 104(a)(2)             
          requires only a claim that is bona fide and does not require a              
          claim which is sustainable.  See Stocks v. Commissioner, 98 T.C.            
          1, 10 (1992); Sodoma v. Commissioner, T.C. Memo. 1996-275, affd.            
          without published opinion 139 F.3d 899 (5th Cir. 1998).                     





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