Stephen G. and Karen P. Shaltz - Page 6

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          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...)           





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