- 30 - elements involve fixed awards21 and since it is based on no-fault principles. See Kane v. United States, 43 F.3d 1446, 1449 (Fed. Cir. 1994); Take v. Commissioner, supra at 557. It follows that an allocation in a settlement agreement to a worker’s compensation claim is not conclusive as to the amount that was paid in settlement of tort or tort type personal injury claims. Thus, we cannot agree that the settlement agreement between DHS and Mr. Forste, on its face, provides an express allocation between tort or tort type claims and nontort claims. In the absence of an express allocation, we must examine all the facts and circumstances to determine what portion, if any, of the $45,615 from DHS was paid to settle Mr. Forste’s tort or tort type personal injury claims. See Robinson v. Commissioner, supra at 127. The intent of the payor is critical in determining whether an amount is excludable. Knuckles v. Commissioner, 349 F.2d 610, 613 (10th Cir. 1965), affg. T.C. Memo. 1964-33; Stocks v. Commissioner, 98 T.C. 1, 10 (1992). Our resolution of what portion, if any, of the $45,615 payment was intended to settle tort or tort type personal injury claims presents us with a very difficult task because of ambiguities inherent in the facts in this case. 21See United States v. Burke, 504 U.S. 229, 234-237 (1992) (discussing the compensatory elements of a tort or tort type claim).Page: Previous 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 Next
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