Charles Leonard Braden and Joice Stieber Braden - Page 13

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             lawsuit qualifies, or does not qualify, as “damages                      
             received * * * on account of personal injuries” under                    
             section 104(a)(2).  Rather, it is the nature of the                      
             taxpayer’s claim underlying the settlement payment that                  
             controls.  United States v. Burke, supra at 237.  In order               
             to come within section 104(a)(2), the taxpayer must show                 
             that the legal basis for the recovery  redresses a tort or               
             tortlike personal injury.  The fact that the lawsuit is                  
             for breach of contract, by itself, does not foreclose the                
             possibility that the taxpayer’s claim is for personal                    
             injury.                                                                  
                  To characterize the proceeds of litigation, the test,               
             simply stated, is:  “In lieu of what were the damages                    
             awarded?”  Tribune Publg. Co. v. United States, 836 F.2d                 
             1176, 1178 (9th Cir. 1988); Raytheon Prod. Corp. v.                      
             Commissioner, 144 F.2d 110, 113 (1st Cir. 1944), affg. 1                 
             T.C. 952 (1943).  In Raytheon Prod. Corp. v. Commissioner,               
             supra at 113, the court held that “The test is not whether               
             the action was one in tort or contract but rather the                    
             question to be asked is ‘In lieu of what were the damages                
             awarded?’”  See also Milenbach v. Commissioner, 318 F.3d                 
             924, 931-34 (9th Cir. 2003) (whether a portion of the                    
             proceeds from settlement of eminent domain action should                 
             be characterized as taxable lost profits), affg. in part,                






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