344
O'Connor, J., dissenting
or tort like, but neither states that this showing is sufficient for excludability under § 104(a)(2). This contention is untenable.
The Court's decision in Burke makes clear that it was deciding conclusively what § 104(a)(2) permits to be excluded. After quoting the language of § 104(a)(2), the Court introduced its analysis with the following: "Neither the text nor the legislative history of § 104(a)(2) offers any explanation of the term 'personal injuries.' Since 1960, however, IRS regulations formally have linked identification of a personal injury for purposes of § 104(a)(2) to traditional tort principles." 504 U. S., at 234. The Court then quoted language from the IRS regulation, 26 CFR § 1.104-1(c) (1991), which identified recovery from a suit " 'based on tort or tort type rights' " as the hallmark of excludability under § 104(a)(2). Every Member of the Court so understood the opinion—that the scope of § 104(a)(2) is defined in terms of traditional tort principles. See 504 U. S., at 246-247 (Souter, J., concurring in judgment); id., at 249 (O'Connor, J., dissenting). Even Justice Scalia, who disagreed with the Court that "personal injury or sickness" included nonphysical injuries, see id., at 243-244 (opinion concurring in judgment), agreed that the IRS regulation is "descriptive of the ambit of § 104(a)(2) as a whole," id., at 242, n. 1.
For 35 years the IRS has consistently interpreted its regulation, 26 CFR § 1.104-1(c), as conclusively establishing the requirements of § 104(a)(2). See Rev. Rul. 85-98, 1985-2 Cum. Bull. 51. This was the interpretation the Commissioner pressed upon us in Burke, see Brief for United States in United States v. Burke, O. T. 1991, No. 91-42, pp. 22-23; formally affirmed after Burke, see Rev. Rul. 93-88, 1993-2 Cum. Bull. 61; presented to the courts below, see Brief for Appellant in No. 93-5555 (CA5), p. 28, n. 16; and advanced in the opening briefs before us, see Brief for Petitioner 14, n. 5, 16-17, n. 7. It is only in one sentence in her reply brief that the Commissioner expressed a view at odds with 35 years of
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