Gerald A. Bunker - Page 8

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          instance, the insurance benefits do not constitute gross income.            
          That argument is inappropriate in the present case.  The general            
          rule is that the taxability of recovery payments depends upon the           
          nature of the claim.  If the recovery represents damages for lost           
          profits, the payment is considered income; however, if the                  
          recovery represents a replacement of capital destroyed or                   
          damaged, the recovery does not constitute income to the extent              
          the recovery does not exceed the basis of the damaged or                    
          destroyed property.  In the latter case, the recovery is a                  
          restoration or return of capital.  State Fish Corp. v.                      
          Commissioner, 48 T.C. 465, 473 (1967).  In the present case,                
          petitioner had no basis in his credit card liability.  Therefore,           
          the payments by the insurance companies were not a recovery or              
          restoration of capital.  These payments were income.7                       
                                     Conclusion                                       
               We have considered all of the other arguments made by the              
          parties, and, to the extent that we have not specifically                   
          addressed them, we conclude they are without merit.                         


          7We note that the amounts reported as income could be                       
          reduced or offset by the premiums paid by petitioner for the                
          insurance coverage for the benefits payable arising during the              
          period of petitioner’s unemployment.  However, petitioner has               
          failed to establish the total amount of the premiums paid for the           
          year at issue or the portion of such premiums allocable to the              
          unemployment risk (as distinguished from the premiums                       
          attributable to death or disability); therefore no such offset              
          will be allowed.                                                            





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