Ashit Valia and Smita Valia - Page 7

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          regarding gender discrimination and not upon a claim of personal            
          physical injury or sickness.  Consequently, petitioners cannot              
          avail themselves of section 104(a)(2) to exclude $37,500 of the             
          unreported settlement proceeds.                                             
               Petitioners nevertheless claim that the settlement proceeds            
          relate to injuries suffered by petitioner from exposure to                  
          second-hand cigarette smoke at Smith Barney.  Petitioners claim             
          that the release did not cover such injuries because Smith Barney           
          “wanted to protect [itself]”.  Petitioners have not offered, nor            
          can they point to, any evidence in the record that supports such            
          characterization of the settlement payment.3                                
               The remaining $25,000 not reported by petitioners is                   
          characterized as attorney’s fees and costs.  To the extent there            
          was previously any doubt as to the includability in income of               
          attorney’s fees received as part of a contingent-fee agreement,             
          the U.S. Supreme Court recently resolved the question.  In                  
          Commissioner v. Banks, 543 U.S. __, 125 S. Ct. 826 (2005), the              
          Supreme Court held that in general when a plaintiff’s recovery of           
          a money judgment or settlement constitutes income, the portion of           
          a money judgment or settlement paid to the plaintiff’s attorney             
          under a contingent-fee agreement is income to the plaintiff under           
          the Internal Revenue Code.  Accordingly, the $25,000 attorney’s             


               3  It is somewhat illogical to suggest that the release                
          would not include all claims made by petitioner.                            




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