- 22 - 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).Page: Previous 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 Next
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