Wally O. and Kate A. Oyelola - Page 9

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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.                            
               Prior to the SBJPA, section 104 authorized exclusion of                
          damages received on account of “personal injuries or sickness”,             
          which embraced “nonphysical injuries to the individual, such as             
          those affecting emotions, reputation, or character”.  United                
          States v. Burke, supra at 235 n.6; see also Commissioner v.                 
          Schleier, supra at 329-331.  Interpreting that regime, 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             





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