- 6 - The Supreme 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.” Commissioner v. Schleier, supra 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 physical injuries or sickness. Small Business Job Protection Act of 1996, Pub. L. 104-188, sec. 1605(a), 110 Stat. 1838. However, this does not alter the analysis of Schleier. See Tamberella v. Commissioner, T.C. Memo. 2004-47, affd. 139 Fed. Appx. 319, 321 (2d Cir. 2005). None of the underlying documentation describing the nature of the settlement is in the record. The parties have agreed, however, that no part of the settlement paid to petitioner was compensation for physical injury or physical sickness, and petitioner has made no allegation that the damages were paid for medical care attributable to emotional distress. Therefore, petitioner’s recovery is not exempted from inclusion in gross income under section 61. Because petitioner’s recovery constitutes income, his income includes the portion ofPage: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 NextLast modified: November 10, 2007