Robert Henderson - Page 7

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          personal physical injuries or physical sickness” for payments               
          made after August 20, 1996.                                                 
               In the instant case, petitioner received the $5,000                    
          settlement payment pursuant to a settlement agreement with Morgan           
          Stanley.  When damages are received pursuant to a settlement                
          agreement, the nature of the claim that was the actual basis for            
          settlement controls whether such amounts are excludable under               
          section 104(a)(2).  United States v. Burke, supra at 237.  The              
          determination of the nature of the claim is a factual inquiry and           
          is generally made by reference to the settlement agreement.                 
          Robinson v. Commissioner, 102 T.C. 116, 126 (1994), affd. in part           
          and revd. in part on another issue 70 F.3d 34 (5th Cir. 1995),              
          and cases cited therein.  If the settlement agreement lacks                 
          express language stating what the settlement amount was paid to             
          settle, we look to the intent of the payor, based on all the                
          facts and circumstances of the case, including the complaint                
          filed and details surrounding the litigation.  Knuckles v.                  
          Commissioner, 349 F.2d 610, 613 (10th Cir. 1965), affg. T.C.                
          Memo. 1964-33; Robinson v. Commissioner, supra at 127.  If a                
          settlement is attributable to claims based on tort or tort type             
          rights as well as other rights, it may be necessary to determine            
          which portion of the settlement is attributable to damages                  
          received based on tort or tort type rights.  Similarly, it may be           
          necessary to determine which portion, if any, of the settlement             






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