- 11 - because a ruling on the physical injury question will be sufficient to resolve the instant case, we shall follow the lead of the parties and restrict our analysis to the second prong of the test for exclusion under section 104(a)(2). 2. On Account of Personal Physical Injuries As previously discussed, section 104(a)(2) sanctions exclusion of payments received “on account of personal physical injuries or physical sickness”. This phraseology reflects that excludability depends not only on the nature of the injuries but also on the purpose of the payment. Accordingly, in the context of settlement payments, “the critical question is, in lieu of what was the settlement amount paid.” Bagley v. Commissioner, 105 T.C. 396, 406 (1995), affd. 121 F.3d 393 (8th Cir. 1997). This is a factual inquiry involving consideration of all facts and circumstances surrounding the settlement. Id. The Court has summarized the role in this calculus of payment allocations set forth in a settlement agreement: Where there is an express allocation contained in the agreement between the parties, it will generally be followed in determining the allocation if the agreement is entered into by the parties in an adversarial context at arm’s length and in good faith. However, an express allocation set forth in the settlement is not necessarily determinative if other facts indicate that the payment was intended by the parties to be for a different purpose. [Id.; citation omitted.] 4(...continued) incident taking place in March of 1991 to support their request for exclusion under sec. 104(a)(2).Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Next
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