Rita Grant Ndirika - Page 11

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          gross income does not include:                                              
                    (2) 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 ac-                   
               count of personal physical injuries or physical sick-                  
               ness;                                                                  
               The regulations under section 104(a)(2) provide in pertinent           
          part:                                                                       
               The term “damages received (whether by suit or agree-                  
               ment)” means 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.                                           
               The Supreme Court summarized the requirements of section               
          104(a)(2) as follows:                                                       
                    In sum, the plain language of � 104(a)(2), the                    
               text of the applicable regulation, and our decision in                 
               Burke establish two independent requirements that a                    
               taxpayer must meet before a recovery may be excluded                   
               under � 104(a)(2).  First, the taxpayer must demon-                    
               strate 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.” * * *                                                    
          Commissioner v. Schleier, supra at 336-337.                                 
               When the Supreme Court issued its opinion in Commissioner v.           
          Schleier, supra, section 104(a)(2), as in effect for the year at            
          issue in Schleier, required, inter alia, that, in order to be               
          excluded from gross income, an amount of damages had to be                  
          received “on account of personal injuries or sickness.”  After              






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Last modified: May 25, 2011