Christina Connolly - Page 6




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          injuries or physical sickness.  Small Business Job Protection Act           
          of 1996, Pub. L. 104-188, sec. 1605, 110 Stat. 1838.  However,              
          this does not otherwise alter the analysis of Schleier.  See                
          Tamberella v. Commissioner, T.C. Memo. 2004-47, affd. 139 Fed.              
          Appx. 319 (2d Cir. 2005).                                                   
          Nature of the Claim                                                         
               To determine whether the settlement payment is excludable              
          under section 104(a)(2) and Schleier, the Court must determine              
          the nature of the claim that was the basis of the settlement.               
          United States v. Burke, supra at 237.  The “key question” to be             
          answered is “‘In lieu of what were the damages awarded?’”.                  
          Robinson v. Commissioner, 102 T.C. 116, 126 (1994) (quoting                 
          Raytheon Prod. Corp. v. Commissioner, 144 F.2d 110, 113 (1st Cir.           
          1944), affg. 1 T.C. 952 (1943)), affd. in part, revd. in part on            
          another ground and remanded 70 F.3d 34 (5th Cir. 1995).  This               
          “determination is factual and is generally made by reference to             
          the settlement agreement in light of surrounding circumstances.”            
          Id.  Both parts of the Schleier test are applied in the light of            
          the nature of the claim underlying the settlement.  United States           
          v. Burke, supra at 237.                                                     
               The Court will assume here, without deciding, that                     
          petitioner’s claims were “based upon tort or tort type rights”.             
          The next step in the analysis is to examine the second part of              
          the Schleier test.                                                          







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