Virgie R. Porter - Page 7




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          “[W]here an amount is paid in settlement of a case, the critical            
          question is, in lieu of what was the settlement amount paid”.               
          Bagley v. Commissioner, 105 T.C. 396, 406 (1995), affd. 121 F.3d            
          393 (8th Cir. 1997).  An important factor in determining the                
          validity of the agreement is the “intent of the payor” in making            
          the payment.  Knuckles v. Commissioner, 349 F.2d 610, 613 (10th             
          Cir. 1965), affg. T.C. Memo. 1964-33.  If the payor’s intent                
          cannot be clearly discerned from the settlement agreement, the              
          intent of the payor must be determined from all the facts and               
          circumstances of the case, including the complaint filed and                
          details surrounding the litigation.  Robinson v. Commissioner,              
          supra at 127.3                                                              
               In Laber v. Commissioner, T.C. Memo. 1997-559, the taxpayer            
          filed eight EEOC complaints against his former employer.  The               
          settlement agreement did not allocate the damage award, nor did             
          the taxpayer allege in any of the eight complaints personal                 
          injury or sickness that occurred as a result of the alleged                 
          discrimination.  We held the settlement award was not excludable            
          under section 104(a)(2).  Id.                                               
               Similarly, petitioner did not allege physical injury or                
          sickness in her complaints filed with the EEOC.  Petitioner,                
          however, argues that the $71,600 damage award represented                   

               3  Sec. 7491(a), concerning burden of proof, has no bearing            
          on the underlying substantive issue.  Respondent has satisfied              
          the burden of production with respect to the accuracy-related               
          penalty under sec. 6662.  See sec. 7491(c).                                 




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