- 27 -                                         
          Unreported Income From Settlements of Lawsuits                              
               Marine Builders, Inc.                                                  
               Petitioner argues that the $92,420 he received in 1994 in              
          settlement of his lawsuit against Marine Builders, Inc., was a              
          return of capital.18  The taxability of proceeds received from a            
          lawsuit depends on the nature of the claim and the basis of the             
          recovery.  Raytheon Prod. Corp. v. Commissioner, 144 F.2d 110,              
          114 (1st Cir. 1944), affg. 1 T.C. 952 (1943).  When amounts                 
          received from a lawsuit, through litigation or settlement,                  
          represent lost profits, the amount is taxable income; when the              
          amount represents damages for lost capital, such amount is not              
          taxable.  Booker v. Commissioner, 27 T.C. 932, 937 (1957);                  
          Raytheon Prod. Corp. v. Commissioner, 1 T.C. 952, 958 (1943),               
          affd. 144 F.2d 110 (1st Cir. 1944).  Petitioner bears the burden            
          of establishing that the proceeds of a settlement are what he               
          claims them to be.  Milenbach v. Commissioner, 318 F.3d 924 (9th            
          Cir. 2003), affg. on this issue 106 T.C. 184 (1996).                        
               The complaint against Marine Builders, Inc., sought damages            
          for breach of warranty, lost income, and loss of value.  The                
          settlement indicated that payments of $92,420 were for “damages             
          for contractual claims” but did not indicate what portion, if               
          any, of the payments was attributable to lost value versus lost             
               18 Petitioner concedes that the remaining $85,119 payment              
          received from Marine Builders, Inc., in 1995 is taxable income.             
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