- 4 - Pursuant to section 7491(a), the burden of proof as to factual matters shifts to respondent under certain circumstances. Because the facts are not in dispute, we decide this case without regard to the burden of proof. I. Taxability of Payment Petitioner Received A taxpayer’s gross income includes all income from whatever source derived unless excluded by a specific provision of the Internal Revenue Code. Sec. 61(a). Gross income does not include “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”. Sec. 104(a)(2). To qualify for this exclusion, the taxpayer must demonstrate: (1) The underlying cause of action giving rise to the recovery is based upon tort or tort type rights; and (2) the damages were received on account of personal physical injuries or physical sickness. Commissioner v. Schleier, 515 U.S. 323, 337 (1995); Allum v. Commissioner, T.C. Memo. 2005-177, affd. 99 AFTR 2d 2007-2527, 2007-1 USTC par 50489 (9th Cir. 2007). The terms “physical injury” and “physical sickness” do not include emotional distress, except to the extent of damages not in excess of the amount paid for medical care attributable to emotional distress. Sec. 104(a); see also Prasil v. Commissioner, T.C. Memo. 2003-100.Page: Previous 1 2 3 4 5 6 7 8 9 10 NextLast modified: November 10, 2007