-9-
opportunities caused by her former employer’s retaliation. The
jury also awarded petitioner $65,000 of non-economic damages to
compensate her for the emotional distress and the injury to her
reputation caused by her former employer’s retaliation. Neither
the economic nor the non-economic damages portion of the award
compensated petitioner for personal physical injury or physical
sickness. Moreover, petitioner did not offer any documentation
of medical expenses incurred for the treatment of her emotional
distress. Finally, the California appellate court did not
mention any claim or damages awarded for personal physical injury
or physical sickness.
We conclude that no portion of the jury award was for
damages received on account of personal physical injury or
physical sickness. Petitioner is therefore not entitled to
exclude any portion of the jury award from income for 2002 under
section 104(a)(2).
III. Exclusion of Attorney’s Fees
We now consider whether petitioner must include in income
the amount of the jury award paid to Mr. Faust as an attorney’s
fee. A litigant generally may not exclude the portion of a
recovery paid to his or her attorney where, as here, the
litigant’s recovery constitutes income. Commissioner v. Banks,
543 U.S. 426, 436-437 (2005). This is true whether the
attorney’s fee was paid on a contingent fee basis or under a fee-
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