-17-
1989); Kightlinger v. Commissioner, T.C. Memo. 1998-357 (citing
Genty v. Resolution Trust Corporation, 937 F.2d 899, 918 (3d Cir.
1991)).
3. Conclusion
The agreement did not allocate any part of the settlement
payment to any personal physical injury or physical sickness
involving petitioner, and the other evidence in the record does
not support such an allocation. Accordingly, we conclude that no
portion of the $500,000 settlement payment was compensation for a
personal physical injury or physical sickness and that petitioner
is not entitled to exclude the payment from gross income under
section 104(a)(2).
4. Petitioner’s Additional Arguments
a. Constitutionality of Section 104(a)(2)
Alternatively, petitioner contends that section 104(a)(2)
does not apply to his settlement proceeds because it is
unconstitutionally vague. Petitioner argues that the local
Taxpayer Advocate Service office’s inability to give a
“definitive answer” to his initial inquiry regarding the
applicability of section 104(a)(2) provides “prima facia evidence
that the IRS, the agency to enforce the statute, does not know
what is included or excluded as taxable or non-taxable income.”
Section 104(a)(2) provides that the amount of any damages,
other than punitive damages, received by suit or agreement “on
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