Marcia S. Green - Page 8

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               A legal award may be excluded from income if two conditions            
          are met.  Id. at 337.  A legal award may be excluded if the                 
          underlying cause of action is based upon tort or tort-type                  
          rights, and if the proceeds were for damages received on account            
          of personal physical injury or physical sickness.7  Id.                     
          Emotional distress is not a personal physical injury or physical            
          sickness.  Sec. 104(a)(2) (flush language).                                 
               The parties agree that petitioner’s underlying cause of                
          action is based upon tort or tort-type rights.  Accordingly, the            
          first condition is met.  The parties dispute, however, whether              
          any portion of the economic or non-economic damages from the jury           
          award was for damages received on account of personal physical              
          injury or physical sickness.                                                
               Petitioner did not allege in the complaint against the                 
          University that she suffered personal physical injury or physical           
          sickness as a result of its discrimination or retaliation, or               
          that she was entitled to recover any amount from the University             
          for any such personal physical injury or physical sickness.  In             
          addition, the jury’s verdict did not contain any reference to               
          personal physical injury or physical sickness.  The jury awarded            
          petitioner $1.5 million of economic damages to compensate her for           
          the loss of earnings, loss of employment, and loss of employment            


               7The Supreme Court in Commissioner v. Schleier, 515 U.S. 323           
          (1995), analyzed sec. 104(a)(2) before its amendment by the SBJPA           
          sec. 1605(a), when the restrictive modifier “physical” was added            
          to limit the scope of “personal injuries”.                                  



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