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