Gavin Polone - Page 41

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          II. Exclusion pursuant to Section 104(a)(2)                                 
               Respondent determined that the May 1996 payment, the May               
          1997 payment, and the November 1998 payment are not excludable              
          pursuant to section 104(a)(2).  Respondent also denied                      
          petitioner’s refund claim (relating to the November 1996 payment)           
          for the same reason.  Petitioner challenges respondent’s                    
          determination and the denial of his refund claim.21                         
               A.   Section 104                                                       
               As a general rule, the Internal Revenue Code imposes a                 
          Federal tax on the taxable income of every individual.  Sec. 1.             
          Section 61(a) specifies that, “Except as otherwise provided”,               
          gross income for purposes of calculating such taxable income                
          means “all income from whatever source derived”.  The Supreme               
          Court has long reiterated the sweeping scope of section 61.                 
          Commissioner v. Schleier, 515 U.S. 323, 327 (1995); Commissioner            
          v. Glenshaw Glass Co., 348 U.S. 426, 429-431 (1955).                        
               Section 104, in contrast, provides an exception with respect           
          to compensation for injuries or sickness.  Such exclusions from             
          gross income are construed narrowly.  Commissioner v. Schleier,             
          supra at 328; United States v. Burke, 504 U.S. 229, 248 (1992)              
          (Souter, J., concurring in judgment); Banaitis v. Commissioner,             
          340 F.3d 1074, 1079 (9th Cir. 2003), affg. in part and revg. in             
          part T.C. Memo. 2002-5.  Before its amendment on August 20, 1996,           


               21  We note that we have jurisdiction to determine whether             
          there was an overpayment of tax for 1996.  Secs. 6512(b),                   
          7422(e).                                                                    



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