George G. Green - Page 26

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          punitive damages that had been awarded under the final judgment             
          in the whistleblower lawsuit.  There is no indication that a                
          total abatement was intended or effected.  In any event,                    
          petitioner has presented no persuasive reason for concluding that           
          any of the damages resolved by paragraph 6 fall within an exempt            
          category.                                                                   
               Again, petitioner has failed to establish the second prong             
          of Schleier because he is unable to establish that any part of              
          the second annuity was allocable to personal injury or sickness,            
          and the record lacks any evidentiary basis for concluding that              
          any portion of the second annuity was allocable to personal                 
          injury or sickness.  See Lindsey v. Commissioner, supra.                    
          Therefore, after examining the facts and circumstances                      
          surrounding the claim and the settlement agreement, we conclude             
          that the payments received under paragraph 6 and the second                 
          annuity contract are not excludable under section 104(a)(2) and             
          are to be included in petitioner’s gross income when received.              
          Expenses for Green Capital and TS Capital                                   
               The parties stipulated that for tax years 1995 through 1998            
          petitioner is entitled to additional deductions in agreed amounts           
          under either section 162 or section 212 as the Court may                    
          determine.  Petitioner contends that the additional deductions              
          are allowable as ordinary and necessary business expenses under             
          section 162.  Respondent contends that the additional deductions            






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