Thomas Andrew and Diane Koerner Campbell - Page 8




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          show that the damages were received ‘on account of personal                 
          injuries or sickness.’”  Commissioner v. Schleier, supra at 337;            
          see also Hemelt v. United States, 122 F.3d 204, 208 (4th Cir.               
          1997) (quoting above passage from Schleier as the “basic test               
          * * * for determining whether an award may fairly be                        
          characterized as personal injury damages” that fall within the              
          section 104(a)(2) exclusion).5                                              
               In the instant case, petitioners make a series of arguments            
          to support their assertion that the backpay and interest on the             
          backpay awarded by the MSPB are really an award of damages for a            
          personal injury suffered by Mrs. Campbell as a result of her                
          “unlawful demotion”.  Primarily, they argue that, based on United           
          States v. Burke, 504 U.S. 229 (1992), when damages are awarded, a           
          taxpayer need only prove that the underlying claim was based on             
          “tort or tort type rights” for the damages to be excludable under           
          section 104(a)(2).  In such a case, according to petitioners,               
          there is no need for a discussion of whether the requirements of            
          personal injury were met.  Because Mrs. Campbell’s “unlawful                
          demotion” was a tort, which petitioners alternatively                       
          characterize as a “workplace”, an “abuse of process”, and a                 

               5   Interest received on damage awards must be included in             
          gross income under sec. 61, even under circumstances in which the           
          underlying damages are excludable under sec. 104(a)(2).  Rozpad             
          v. Commissioner, 154 F.3d 1 (1st Cir. 1998), affg. T.C. Memo.               
          1997-528; Brabson v. United States, 73 F.3d 1040 (10th Cir.                 
          1996); Kovacs v. Commissioner, 100 T.C. 124 (1993), affd. without           
          published opinion 25 F.3d 1048 (6th Cir. 1994).                             






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