Norman L. and Catherine J. Forste - Page 30

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          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).                                                                     




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