Terry Fred Burnham - Page 7

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               It is our obligation to apply the law to the facts of this             
          case, and the fact that the Commissioner may have treated a                 
          taxpayer differently in another year does not change our                    
          obligation.  Malinowski v. Commissioner, 71 T.C. 1120, 1128                 
          (1979); Robinson v. Commissioner, T.C. Memo. 1996-154.                      
               Section 61(a) provides that, except as otherwise provided,             
          gross income includes all income from whatever source derived.              
          The Supreme Court has reiterated the sweeping scope of section              
          61.  Commissioner v. Banks, 543 U.S. 426 (2005); Commissioner v.            
          Schleier, 515 U.S. 323, 327 (1995); Commissioner v. Glenshaw                
          Glass Co., 348 U.S. 426, 429-431 (1955).  Section 104, in                   
          contrast, provides an exclusion with respect to compensation for            
          injuries or sickness.  Such exclusions are construed narrowly.              
          Commissioner v. Schleier, supra at 328.  One of the conditions of           
          excludability, relevant in this case, is that the amounts                   
          received through accident or health insurance for personal                  
          injuries or sickness must not be amounts received by an employee,           
          to the extent such amounts are either attributable to                       
          contributions of the employer and not includable in income of the           
          employee or are paid by the employer.  There is no evidence in              
          this case that petitioner satisfies the conditions of section               
          104(a)(3).                                                                  
               Section 105(a) provides that amounts received by an employee           
          through accident or health insurance for personal injuries or               






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