William L. and Marsha G. Kidd - Page 9

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          this case to place upon respondent the burden of proof as to the            
          deficiency.                                                                 
               We agree with respondent that section 104(a)(2) does not               
          exclude the $132,000 payment from petitioners’ 2000 gross income.           
          We do so, however, for reasons different than the burden of proof           
          grounds upon which respondent relies.  We decide the legal issue            
          at hand on the basis of the record, without regard to which party           
          bears the burden of proof.                                                  
               Section 61(a) provides that gross income includes all income           
          from whatever source derived.  Section 61(a) is construed broadly           
          to reach any accession to wealth.  Exclusions from gross income             
          are construed narrowly.  Commissioner v. Schleier, 515 U.S. 323,            
          328 (1995); United States v. Burke, 504 U.S. 229, 233 (1992).               
               The parties disagree over the applicability of section                 
          104(a)(2) to this case.  That section as applicable here excludes           
          from gross income “the amount of any damages (other than punitive           
          damages) received (whether by suit or agreement and whether as              
          lump sums or as periodic payments) on account of personal                   
          physical injuries or physical sickness”.  In this context, the              
          terms “physical injury” and “physical sickness” do not include              
          emotional distress, except to the extent of damages not in excess           
          of the amount paid for medical care described in section                    
          213(d)(1)(A) and (B) attributable to emotional distress.  See               
          sec. 104(a) (flush language).                                               






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