Christina Connolly - Page 5




                                        - 5 -                                         
          narrowly construed.  Commissioner v. Schleier, 515 U.S. 323, 328            
          (1995) (citing United States v. Burke, 504 U.S. 229, 233 (1992)).           
          Exclusion of Certain “Damages”                                              
               Section 104(a)(2) allows taxpayers to exclude from income              
          “the amount of any damages (other than punitive damages) received           
          (whether by suit or agreement * * *) on account of personal                 
          physical injuries or physical sickness”.  The flush language of             
          section 104(a) specifies that “emotional distress shall not be              
          treated as a physical injury or physical sickness.”                         
               Regulations provide that the term “damages” means amounts              
          received (aside from workmen’s compensation) through litigation             
          or settlement of an action that is based on “tort or tort type              
          rights”.  Sec. 1.104-1(c), Income Tax Regs.                                 
               The Court in Commissioner v. Schleier, supra, held that                
          damages are excludable from income under section 104(a)(2) if               
          they meet a two-pronged test.  First, the taxpayer must                     
          demonstrate that the underlying cause of action giving rise to              
          the recovery is “based upon tort or tort type rights”, and                  
          second, the taxpayer must show that the damages were received “on           
          account of personal injuries or sickness.”  Id. at 335-337.  Both           
          requirements must be satisfied for the damages to be excluded               
          from income.  Id. at 333.                                                   
               Section 104(a)(2) was amended in 1996 to include the                   
          requirement that damages be received for personal physical                  







Page:  Previous  1  2  3  4  5  6  7  8  9  10  11  12  13  Next 

Last modified: November 10, 2007