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physical injuries or physical sickness”, within the
meaning of section 104(a)(2). As to this portion of the
adjustment, we find that respondent has failed to carry
his burden of showing that there are no material facts in
dispute and that he should prevail as a matter of law.
See, e.g., Sundstrand Corp. v. Commissioner, 98 T.C. 518,
520 (1992), affd. 17 F.3d 965 (7th Cir. 1994). See also
Rule 121(a) and (b) of the Tax Court Rules of Practice and
Procedure. Hereinafter, all Rule references are to the
Tax Court Rules of Practice and Procedure. Accordingly,
we will deny respondent’s motion for summary judgment as
to the $30,000 amount that petitioners claim is excludable
from income pursuant to section 104(a)(2) as damages
received on account of personal injuries. In deciding
respondent’s motion, we have viewed all factual inferences
in the light most favorable to petitioners. See Speltz v.
Commissioner, 124 T.C. 165 (2005); Preece v. Commissioner,
95 T.C. 594, 597 (1990).
Section 104(a)(2) excludes from gross income “the
amount of any damages (other than punitive damages)
received (whether by suit or agreement and whether as lump
sums or as periodic payments) on account of personal
physical injuries or physical sickness”. Amounts are
excludable from gross income under section 104(a)(2) only
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