Sandra G. Venable - Page 8

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               amount of damages not in excess of the amount paid for                 
               medical care * * * attributable to emotional distress.                 
          Legislative history accompanying passage of the SBJPA                       
          additionally clarifies that “the term emotional distress includes           
          symptoms (e.g., insomnia, headaches, stomach disorders) which may           
          result from such emotional distress.”  H. Conf. Rept. 104-737, at           
          301 n.56 (1996), 1996-3 C.B. 741, 1041.                                     
               Regulations promulgated under section 104 further define               
          “damages received (whether by suit or agreement)” as “an amount             
          received (other than workmen’s compensation) through prosecution            
          of a legal suit 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.                            
               For purposes of applying the above statutory and regulatory            
          text in effect prior to the SBJPA, the U.S. Supreme Court in                
          Commissioner v. Schleier, supra at 336-337, established a two-              
          pronged test for ascertaining a taxpayer’s eligibility for the              
          section 104(a)(2) exclusion.  As stated by the Supreme Court:               
          “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.’”               
          Id. at 337.  This test has since been extended to apply to the              
          amended version of section 104, with the corresponding change               
          that the second prong now requires proof that the personal                  





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