- 8 -
Commissioner, 87 T.C. 74 (1986). Accordingly, petitioner bears
the burden of proof.5 See Rule 142(a).
B. Section 104
It is well established that, pursuant to section 61(a),
gross income includes all income from whatever source derived
unless otherwise excluded by the Internal Revenue Code. See
Commissioner v. Glenshaw Glass Co., 348 U.S. 426, 429-431 (1955).
Exclusions from gross income are construed narrowly.
Commissioner v. Schleier, 515 U.S. 323, 327-328 (1995).
As relevant here, section 104 provides:
SEC. 104. COMPENSATION FOR INJURIES OR SICKNESS.
(a) In General.--Except in the case of amounts
attributable to (and not in excess of) deductions
allowed under section 213 (relating to medical, etc.,
expenses) for any prior taxable year, gross income does
not include--
* * * * * * *
(2) the amount of any damages (other than
punitive damages) received (whether by suit or
agreement and whether as lump sums or as periodic
payments) on account of personal physical injuries
or physical sickness;
* * * * * * *
5 For the first time, in the opening brief petitioner
raises the issue of respondent’s bearing the burden of proof
pursuant to sec. 7491(a), as amended. Generally, we will not
consider an issue that is raised for the first time on brief.
See Foil v. Commissioner, 92 T.C. 376, 418 (1989), affd. 920 F.2d
1196 (5th Cir. 1990); Markwardt v. Commissioner, 64 T.C. 989, 997
(1975).
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