- 7 - 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).Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 NextLast modified: November 10, 2007