- 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).
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