- 6 - the focus is the nature of the claim underlying the damage award. United States v. Burke, 504 U.S. 229, 237 (1992). The underlying claim giving rise to the recovery must be “based upon tort or tort type rights”, and the damages must have been received “on account of personal injuries or sickness”. Commissioner v. Schleier, 515 U.S. 323, 336-337 (1995). Section 1.104-1(c), Income Tax Regs., provides that “The term ‘damages received (whether by suit or agreement)’ [in section 104(a)(2)] means an amount received (other than worker’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.” Despite the fact that petitioner sued to obtain Social Security disability benefits, these benefits do not constitute “damages” from a tortious injury. Rather, these benefits are amounts received through disability insurance.4 See Andrews v. Commissioner, T.C. Memo. 1992-668. Taking into account petitioners’ 2000 filing status, their modified adjusted gross income, and the Social Security disability benefits petitioner received that year, 85 percent of 4 To the extent that petitioners did receive erroneous advice on this point from one of respondent’s employees, the event is of no significance here. See Zimmerman v. Commissioner, 71 T.C. 367, 371 (1978), affd. without published opinion 614 F.2d 1294 (2d Cir. 1979); Green v. Commissioner, 59 T.C. 456, 458 (1972).Page: Previous 1 2 3 4 5 6 7 8 9 Next
Last modified: May 25, 2011