-6- 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. In the absence of bona fide language in a settlement agreement as to the reason for a settlement payment, we discern that reason by determining the intent of the payor in making the payment. Robinson v. Commissioner, 102 T.C. 116, 127 (1994), affd. in part and revd. in part on another issue not relevant herein 70 F.3d 34 (5th Cir. 1995). We do so on the basis of all the facts and circumstances of the case, including an analysis of the complaint filed and the details surrounding the litigation. Id. Petitioners must meet a two-prong test in order for the net settlement payment to be excluded under section 104(a)(2). More specifically, they must prove that: (1) The underlying cause of action giving rise to petitioner’s recovery of the payment is based upon tort or tort type rights and (2) the payment was received on account of personal physical injuries or physical sickness. Commissioner v. Schleier, supra at 328;3 see also sec. 3 As relevant herein, the Small Business Job Protection Act of 1996 (SBJPA), Pub. L. 104-188, sec. 1605, 110 Stat. 1838, amended sec. 104(a)(2) to narrow the exclusion for amounts received after Aug. 20, 1996. Whereas the text of the predecessor section allowed an exclusion for damages received “on account of personal injuries or sickness”, the SBJPA mandated that the damages could be excluded from gross income only if they were received “on account of personal physical injuries or physical sickness”. (Emphasis added.) The Supreme Court in Commissioner v. Schleier, 515 U.S. 323 (1995), addressed the (continued...)Page: Previous 1 2 3 4 5 6 7 8 9 10 11 Next
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