- 5 - Without regard to which party bears the burden of proof, we find and hold that the $25,000 is income to petitioner and that none of the $25,000 constitutes damages received “on account of personal physical injuries or physical sickness” within the meaning of section 104(a)(2).2 We reject at the outset petitioners’ reliance on Murphy v. IRS, supra. After the filing of petitioners’ posttrial brief, the Court of Appeals for the D.C. Circuit vacated its judgment resulting from that opinion and reheard arguments on the case. Later, in Murphy v. IRS, 493 F.3d 170 (D.C. Cir. 2007), the Court of Appeals for the D.C. Circuit held that the damages received by the taxpayer were income included in the taxpayer’s gross income and were outside the exclusion in section 104(a)(2). We agree without further comment that the $25,000 is income to petitioner and limit our subsequent inquiry to whether the $25,000 is excluded from their gross income under section 104(a)(2). Section 104(a)(2) is construed narrowly. See, e.g., O’Gilvie v. United States, 519 U.S. 79 (1996); Commissioner v. Schleier, 515 U.S. 323, 328 (1995). Under section 104(a)(2), settlement proceeds are excludable from gross income to the extent: (1) The underlying cause of action is based upon tort or 2 We apply sec. 104(a)(2) as amended in 1996 by the Small Business Job Protection Act of 1996, Pub. L. 104-188, sec. 1605, 110 Stat. 1838, effective generally for amounts received after Aug. 20, 1996. That amendment, in relevant part, added the modifier “physical” after “personal” and before “injuries”.Page: Previous 1 2 3 4 5 6 7 8 NextLast modified: November 10, 2007