Nedra Bolden - Page 9

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          prerequisite steps would the settlement payment be sent.  By                
          requiring petitioner to take these steps, Universal was in fact             
          buying their release from having to fully litigate petitioner's             
          discrimination claims.                                                      
               While the Court does not dismiss the illnesses that                    
          petitioner experienced during her employment, the evidence                  
          supports the conclusion that the settlement payment was intended            
          by Universal to be nonwage income and not to compensate                     
          petitioner for any physical injuries or physical sickness.                  
               Since the Court has found that the settlement proceeds were            
          not based on personal physical injuries or physical sickness,               
          there is no need to determine whether "the underlying cause of              
          action giving rise to the recovery * * * [was] 'based upon tort             
          or tort type rights.'"  Commissioner v. Schleier, 515 U.S. at 337           
          (quoting section 1.104-1(c), Income Tax Regs.).  The Court holds            
          that the $50,000 damage award is not excludable from gross income           
          under section 104(a)(2).                                                    
          Penalty Under Section 6662(a)                                               
               The Commissioner has the "burden of production in any court            
          proceeding with respect to the liability of any individual for              
          any penalty" under section 6662(a).  Sec. 7491(c); Higbee v.                
          Commissioner, 116 T.C. 438, 446-447 (2001).  To meet this burden,           
          the Commissioner must come forward with sufficient evidence                 
          indicating that it is appropriate to impose the penalty.  Higbee            






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