Jacqueline Medina - Page 7

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          amount.  Respondent issued petitioner a notice of deficiency in             
          which respondent determined that petitioner failed to report the            
          $58,000 amount on her Federal income tax return.                            
                                     Discussion                                       
          1.  Excludability of the $58,000 Amount4                                    
               Section 61(a) provides that “gross income means all income             
          from whatever source derived” except as otherwise provided.                 
          Section 104(a)(2) excludes from gross income “the amount of any             
          damages (other than punitive damages) received (whether by suit             
          or agreement and whether as lump sums or as periodic payments) on           
          account of personal physical injuries or physical sickness”.                
          The term “damages received” means an amount received “through               
          prosecution of a legal suit or action based upon tort or tort               
          type rights, or through a settlement agreement entered into in              
          lieu of such prosecution.”  Sec. 1.104-1(c), Income Tax Regs.               
          The flush language of section 104(a) further provides that                  
          “emotional distress shall not be treated as a physical injury or            
          physical sickness” for purposes of section 104(a)(2).  “[T]he               

               4Sec. 7491(a) places upon the Commissioner the burden of               
          proof with respect to any factual issue relevant to a taxpayer's            
          liability for tax if the taxpayer proves that she maintained                
          adequate records, satisfied applicable substantiation                       
          requirements, cooperated with the Commissioner, and introduced              
          during the Court proceeding credible evidence on the factual                
          issue.  See Prince v. Commissioner, T.C. Memo. 2003-247.                    
          Petitioner did not assert nor present evidence or argument that             
          she satisfied the requirements of sec. 7491(a).  However, the               
          resolution of this issue does not depend on which party has the             
          burden of proof.  We resolve this issue on the preponderance of             
          the evidence in the record.                                                 




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