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account of personal physical injuries or physical sickness” is
excludable from gross income. The language of the statute is not
vague or ambiguous such that “men of common intelligence must
necessarily guess at its meaning”. Baggett v. Bullitt, 377 U.S.
360, 367 (1964); Connally v. Gen. Constr. Co., 269 U.S. 385, 391
(1926); see also Retired Teachers Legal Def. Fund, Inc. v.
Commissioner, 78 T.C. 280, 285 (1982). Moreover, the IRS
specifically offered petitioner a more formal opinion on the
taxability of his settlement, which petitioner refused, and
postamendment section 104(a)(2) has been applied in numerous
opinions with no mention of any concern about vagueness.11 See,
e.g., Ndirika v. Commissioner, T.C. Memo. 2004-250; Lindsey v.
Commissioner, T.C. Memo. 2004-113; Tamberella v. Commissioner,
T.C. Memo. 2004-47; Amos v. Commissioner, T.C. Memo. 2003-329;
Shaltz v. Commissioner, T.C. Memo. 2003-173. Although the
standard established in section 104(a)(2) may be difficult to
apply to particular factual circumstances, this fact does not
render the statute vague or ambiguous and does not persuade us to
11When other constitutional challenges have been raised
against sec. 104(a)(2), the statute consistently has been upheld.
See, e.g., Polone v. Commissioner, T.C. Memo. 2003-339
(postamendment sec. 104 is not unconstitutionally retroactive);
Venable v. Commissioner, T.C. Memo. 2003-240 (postamendment sec.
104 is neither retroactive nor unconstitutional), affd. 110 Fed.
Appx. 421 (5th Cir. 2004); see also Young v. United States, 332
F.3d 893 (6th Cir. 2003) (the distinction in postamendment sec.
104(a)(2) between physical and nonphysical injury does not
violate the Equal Protection Clause of the Fifth Amend.).
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