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