Norman L. and Catherine J. Forste - Page 25

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               The breach of contract and the misrepresentation claims do             
          not sound in tort, and to the extent that the agreement with DHS            
          was made to satisfy those claims, any settlement proceeds would             
          not be excludable under section 104(a)(2).  See Metzger v.                  
          Commissioner, 88 T.C. 834, 848-850, 858 (1987), affd. without               
          published opinion 845 F.2d 1013 (3d Cir. 1988); Reisman v.                  
          Commissioner, T.C. Memo. 2000-173, affd. without published                  
          opinion 248 F.3d 1151 (6th Cir. 2001).                                      
               The record in this case shows numerous potential reasons for           
          DHS to enter into the settlement agreement, including the                   
          settlement of tort or tort type personal injury claims.  It                 
          appears that Mr. Forste’s assertion of his tort or tort type                
          personal injury claims influenced and expedited DHS’s decision to           
          negotiate the settlement with Mr. Forste.  Thus, we cannot agree            
          with respondent’s suggestion that the only reasons that DHS                 
          entered into the agreement with Mr. Forste were to provide a                
          severance, to terminate a targeted employee, and to settle the              
          breach of contract claim.  The evidence in the record                       
          demonstrates that Mr. Forste asserted several tort or tort type             
          claims, those claims involve personal injuries for purposes of              
          section 104(a)(2), and at least a portion of the settlement in              
          this case was made to settle those claims.  However, our inquiry            
          does not end there.                                                         








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