George G. Green - Page 24

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          made Bullock aware of his injuries, there is no evidence that any           
          of the payments received under paragraph 5 and the first annuity            
          contract were intended by the State to compensate petitioner for            
          personal injuries or sickness.                                              
               Petitioner has failed to establish the second prong of                 
          Schleier because he is unable to establish that any part of the             
          first annuity was allocable to personal injury or sickness, and             
          the record lacks any evidentiary basis for concluding that a                
          specific portion of the first annuity was allocable to any                  
          personal injury or sickness.  See Lindsey v. Commissioner, 422              
          F.3d 684 (8th Cir. 2005), affg. T.C. Memo. 2004-113.  Therefore,            
          after examining the facts and circumstances surrounding the claim           
          and the settlement agreement, we conclude that the payments                 
          received under paragraph 5 and the first annuity contract are not           
          excludable under section 104(a)(2) and are to be included in                
          petitioner’s gross income in the years received.                            
               Paragraph 6 of the settlement agreement allocates the second           
          annuity contract to “all other damages, including punitive                  
          [damages] and pre-judgment and post-judgment interest”.                     
          Petitioner contends that, notwithstanding this express                      
          allocation, none of the payments received under the second                  
          annuity were for punitive damages or interest.                              
               Punitive damages are included in gross income because they             
          are an element of damages not designed to compensate victims;               






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