Charles Leonard Braden and Joice Stieber Braden - Page 11

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             when (1) the underlying cause of action giving rise to the               
             recovery is based on tort or tortlike rights and (2) the                 
             damages are received on account of personal injuries or                  
             sickness.  See, e.g., O’Gilvie v. United States, 519 U.S.                
             79 (1996); Commissioner v. Schleier, 515 U.S. 323, 336-337               
             (1995); sec. 1.104-1(c), Income Tax Regs.                                
                  The term “damages received”, as used in section                     
             104(a)(2), is defined as an amount received “through                     
             prosecution of a legal suit or action based upon tort                    
             or tort type rights, or through a settlement agreement                   
             entered into in lieu of such prosecution.”  Sec.                         
             1.104-1(c), Income Tax Regs.  If the damages are received                
             pursuant to a settlement agreement, as in this case, the                 
             nature of the claim that was the basis for the settlement                
             controls whether damages are excludable under section                    
             104(a)(2).  See United States v. Burke, 504 U.S. 229,                    
             237(1992); Bagley v. Commissioner, 105 T.C. 396, 406                     
             (1995), affd. 121 F.3d 393 (8th Cir. 1997).                              
                  The determination of the nature of a claim is a                     
             question of fact and is generally made by reference to                   
             the settlement agreement in light of the surrounding                     
             circumstances.  See, e.g., Robinson v. Commissioner, 102                 
             T.C. 116, 126 (1994), affd. in part, revd. in part and                   
             remanded on another issue 70 F.3d 34 (5th Cir. 1995);                    






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