Cecil R. and Carol L. Hawkins - Page 5




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               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”.                 






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