Ed and Patricia A. Montgomery - Page 5




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          payments.  Respondent did not make an adjustment in the statutory           
          notice of deficiency with respect to this issue.  By amended                
          answer, respondent asserts that petitioners must include in gross           
          income the principal portions of the payments, $8,511 in 1996 and           
          $10,034 in 1997.                                                            
               Discussion                                                             
               Gross income generally includes income from whatever source            
          derived, unless excluded by statute.  Sec. 61(a).  The exclusion            
          upon which petitioners rely in this case is that of section                 
          104(a)(2), which excludes from gross income “the amount of any              
          damages received (whether by suit or agreement and whether as               
          lump sums or as periodic payments) on account of personal                   
          injuries or sickness.”1  The Supreme Court, in Commissioner v.              
          Schleier, 515 U.S. 323 (1995), summarized the requirements of               
          section 104(a)(2) as follows:                                               
                    In sum, the plain language of � 104(a)(2), the text of            
               the applicable regulation, and our decision in Burke                   
               establish two independent requirements that a taxpayer must            
               meet before a recovery may be excluded under � 104(a)(2).              
               First, the taxpayer must demonstrate that the underlying               
               cause of action giving rise to the recovery is “based upon             
               tort or tort type rights”; and second, the taxpayer must               
               show that the damages were received “on account of personal            
               injuries or sickness.”  * * *                                          


          1Sec. 104(a)(2) was amended by the Small Business Job                       
          Protection Act of 1996, Pub. L. 104-188, sec. 1605, 110 Stat.               
          1755, 1838.  We apply the statute as it was in effect prior to              
          amendment because the payments in this case were received                   
          pursuant to a court decree issued before September 13, 1995.  Id.           
          sec. 1605(d)(2), 110 Stat. 1838.                                            






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