Jody Schoolcraft-Burkey - Page 8




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                                    Discussion                                        
             Petitioner has neither claimed nor shown that he satisfied               
        the requirements of section 7491(a) to shift the burden of proof              
        to respondent.  Hence, petitioner bears the burden of proving that            
        respondent’s deficiency determinations are incorrect.  See Rule               
        142(a); Welch v. Helvering, 290 U.S. 111, 115 (1933).                         
             It is well established that, pursuant to section 61(a), gross            
        income includes all income from whatever source derived unless                
        otherwise excluded by the Internal Revenue Code.  See Commissioner            
        v. Glenshaw Glass Co., 348 U.S. 426, 429-431 (1955).  Exclusions              
        from gross income are construed narrowly.  Commissioner v.                    
        Schleier, 515 U.S. 323, 327-328 (1995).  Generally, amounts                   
        received for damages are excludable from gross income if:  (1) The            
        taxpayer demonstrates that the underlying cause of action giving              
        rise to the recovery is based upon tort or tort type rights, and              
        (2) the taxpayer shows that the damages were received on account              
        of personal injuries or sickness.  Id. at 336.                                
        The specific exclusion upon which petitioner relies is found                  
        in section 104.  Section 104, as relevant here, provides:                     
             SEC. 104. COMPENSATION FOR INJURIES OR SICKNESS.                         
                  (a) In General.--Except in the case of amounts                      
             attributable to (and not in excess of) deductions                        
             allowed under section 213 (relating to medical, etc.,                    
             expenses) for any prior taxable year, gross income does                  
             not include--                                                            
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