T.C. Summary Opinion 2002-110
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T.C. Summary Opinion 2002-110
UNITED STATES TAX COURT
JARED R. NIELD AND NAYLENE M. NIELD, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 11828-01S.
Filed August 27, 2002.
Leasa M. Tripp, for petitioners.
S. Mark Barnes, for respondent.
CHIECHI, Judge:
This case was heard pursuant to section
7463 of the Internal Revenue Code in effect at the time the
petition was filed.1
The decision to be entered is not
reviewable by any other court, and this opinion should not be
cited as authority.
1
Unless otherwise indicated, all subsequent section references are to the Internal Revenue Code in effect for the year at
issue.
- 2 Respondent determined a deficiency in petitioners’ Federal
income tax (tax) for 1998 in the amount of $4,763.
The issue for decision is whether the $29,000 settlement
amount (settlement amount at issue) that petitioner Naylene M.
Nield (Ms. Nield) received in 1998 in settlement of a claim
against her employer is excludable from petitioners’ gross income
under section 104(a)(2).
We hold that it is not.
Background
Most of the facts have been stipulated and are so found.
Petitioners resided in Cedar City, Utah, at the time they
filed the petition in this case.
On September 5, 1989, Ms. Nield began working for Goer
Manufacturing, Inc. (Goer).
On or about July 9, 1992, Goer
terminated her employment.
On December 31, 1992, Ms. Nield filed a claim (State claim)
against Goer with the State of Utah Industrial Commission, AntiDiscrimination Division (Utah Industrial Commission) consisting
of two affidavits by Ms. Nield (Ms. Nield’s affidavits) in which
she alleged employment discrimination, sexual harassment, and
retaliation.2
One of Ms. Nield’s affidavits alleged that “when
* * * [Ms. Nield’s supervisor] would walk past me he would lift
up his elbow and bump into my breast.”
2
Although the record is unclear, it appears that at some
time after Ms. Nield filed the State claim, that claim was
referred to the Equal Employment Opportunity Commission (EEOC).
- 3 On or about October 4, 1996, Ms. Nield received a “Notice of
Right to Sue” from the Phoenix District Office of the EEOC.
In December 1996, Ms. Nield filed a complaint (complaint)
against Goer in the United States District Court for the Southern
District of Utah (United States District Court).
In that com-
plaint, Ms. Nield alleged both a claim for sexual harassment
under “Title VII of the Act of Congress known as ‘The Civil
Rights Act of 1964' (42 U.S.C. §2000e) et seq.)”, and a State law
claim for wrongful termination “in violation of Title [sic] 35-911, Utah Code Annotated.”
Ms. Nield’s complaint alleged in pertinent part:
11. During and throughout the period of Plaintiff’s employment with Defendant [Goer], and culminating with the Defendants [sic] termination of the Plaintiff, the Plaintiff was subject to sexual harassment in
violation of Section 704, Title VII (42 U.S.C. §2000e3), to wit:
a. The Defendant, Goer Manufacturing Company
subjected her to a hostile and sexually demeaning work
environment due to repeated acts of sexual harassment
by her supervisor * * * by subjecting the Plaintiff to
such things as:
i.
comments about her anatomy;
ii.
degrading sexual remarks;
iii. pressure to date and give sexual
favors to a co-worker in return for money;
iv. having sexually explicit calendars
and cartoons in the workplace; and
v. other acts and omissions of and
causing sexual harassment.
- 4 b. Defendant, acted in a discriminatory
manner towards her because Defendant retaliated against
her by terminating her employment because she complained to management about the alleged sexual harassment, to wit:
i. the supervisor about whom she complained had threatened to “get even” with her if she
ever reported him to management again
ii. Plaintiff s [sic] supervisor was
instrumental in the decision to terminate her
iii. and was retaliating against her
because she had reported his acts of sexual harassment
to management.
12. As a further result of the Defendant’s abovestated actions, the Plaintiff has been and is being
deprived of income in the form of wages and of prospective retirement benefits, social security and other
benefits due to her as a worker solely because of her
sex in the sum to be proven at the trial.
*
*
*
*
*
*
*
14. Plaintiff invokes this court’s jurisdiction
* * * [to] adjudicate claims arising out of the transactions set forth above that violate rights and duties
established by the law of Utah, to wit:
a. That the Plaintiff s [sic] termination
was wrongful in that it violates of [sic] the public
policy set forth in 42 U.S.C. § 2000e.
b. That the Plaintiff s [sic] termination
was in violation of Title 35-9-11, Utah Code Annotated.
15. The treatment of Plaintiff by Defendant and
by Supervisor were [sic] intentional and with the
purpose and intent of causing Plaintiff severe and
grievous mental and emotional harm which in turn resulted in severe physical consequences in violation of
the common law of Utah.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff respectfully prays this Court
- 5 to:
1. Grant Plaintiff a preliminary injunction
requiring the Defendant to reinstate plaintiff as an
employee * * * and enjoining defendant * * * from
terminating Plaintiff and from harassing her or from
retaliating against her and the class she represents
for asserting their rights under Title VII;
2. Grant Plaintiff a permanent injunction enjoining the Defendant Company * * * from engaging in any
employment policy or practice which discriminates
against any employee or member or applicant for employment on the basis of sex;
3. Order defendant to make whole the Plaintiff
herein by providing appropriate back pay and reimbursement for lost sick leave pay, health and disability
insurance benefits, pension, social security and other
benefits in an amount to be shown at trial, and other
affirmative relief including, but not limited to, an
affirmative action program designed to eliminate the
effects of the discriminatory practices complained of
herein;
*
*
*
*
*
*
*
6. Plaintiff prays for an award of actual damages
to compensate plaintiff for the humiliation and associated personal suffering caused by Defendant’s unlawful
treatment in the amount to be proven at the time of
trial of this matter but in an amount not less than
$100,000.00.
7. Plaintiff prays for an award of punitive
damages in an amount believed by the court to be appropriate to punish Defendant for the willful and malicious misconduct and necessary to deter Defendant from
engaging in such misconduct in the future;
On January 19, 1998, Goer’s attorney conducted a deposition
(deposition) of Ms. Nield with respect to her complaint.
Ms.
Nield testified during her deposition that
There was another occasion where there was a
bunch of –- in my area it was –- I was in the light
- 6 department of Spartan Showcase, and in my area we had
our work tables, and then right behind us we had bins
–- well, they weren’t really bins but they were wood
things that had the sheets for the lights in it. And
there was not very much room between there because we
had a bunch of stuff stacked in there, and he had
brushed by me and did this type of thing into my breast
(indicating).
In connection with Ms. Nield’s foregoing testimony during her
deposition, Goer’s attorney asked her the following questions, to
which she gave the following answers:
Q
Talking about elbowing?
A Bumped his elbow right into my breast.
told her about that.
Q
And I
What else did you tell her?
A The way he talked, the way he swore.
her everything that I have told you.
I told
Q
So you told her about how he broke things?
A
Yes.
Q Told her about how he would scream and abuse
everybody?
A
women.
Yes, and the derogatory statements, harassing
I told her everything.
Q
What did she say after you told her all that?
A
She said, okay, thank you, and continued her --
Q You mentioned something about the elbow in the
breast. When did that happen and what happened?
A He just had –- he was joking with somebody over
down farther from me, and I don’t know what was going
on. I could just hear everybody laughing. * * * [the
supervisor] was there, * * * [coworker 1] was there,
and I don’t know who else was there. But I could hear
* * * [the supervisor] and * * * [coworker 1] laughing,
- 7 because they did it all the time.
And then he came through, there wasn’t room
to get through so he was pushing his way through and
then started laughing and just kept going.
Q
So you were standing --
A
I was standing there working at my table.
Q
At your table.
And he was walking behind you?
A Well, he –- he kind of had to zigzag through
all the stuff that was stacked right there, and * * *
[coworker 2] was there too because she worked and
helped me there. And he had –- there was more room in
between her and him or her and the stuff, and so he
just walked normal past her. But to get around me I
had to turn sideways and kind of move out of the way,
and when he did –- or when I turned he did that.
Q
Do you believe he did that on purpose?
A
Well, he was laughing about it.
So yes, I did.
Q And because he was laughing you felt he did
that on purpose?
A
Yes.
Q In your mind is it just as possible that he did
it by accident and then at that point thought it was
amusing?
A No, because if he had done it on accident he
wouldn’t have even realized he did it. He would have
just kept going and doing his –Q
So what did you say to him?
A I just said –- I just made a -– I didn’t really
say anything. I just was disgusted.
Q
‘91.
When did that happen?
A That was probably somewhere in between ‘90 and
That never happened again after that.
- 8 Q Anything else that he said or did, that * * *
[the supervisor] said or did that you thought was
sexually harassing other than everything we’ve talked
about so far?
A
Well, there’s nothing that stands out in my
mind.
On March 20, 1998, Ms. Nield and Goer executed a document
entitled “SETTLEMENT AGREEMENT AND GENERAL RELEASE” (settlement
agreement).
The settlement agreement provided in pertinent part:
1. Payment Terms. The Company [Goer] shall pay
Nield and her attorneys the amounts set forth below
within fourteen (14) days after receipt by the Company’s counsel of an original of this Settlement Agreement and General Release executed and dated by Nield.
The payment shall be made in the following manner:
a.
The Company will pay and cause to be delivered to
Nield’s attorney, David T. Berry a check made
payable to Naylene Nield in the gross amount of
Three Thousand Dollars and No/100 ($3,000.00),
less required payroll deductions. An IRS Form W-2
will be issued to Nield by the Company.
b.
In addition to the foregoing payment, the Company
will pay Nield the sum of Twenty-nine Thousand
Dollars and No/100 ($29,000.00) as non-wage consideration for general compensatory damages for
pain and suffering incurred by Nield relating to
her claims of intentional discrimination and alleged sexually hostile working environment experienced by Nield while working at Goer. This amount
will be paid by separate check made payable to
Nield, and the Company will issue an IRS Form 1099
reflecting this amount.
*
*
2.
*
*
*
*
*
Mutual Release and Covenant Not To Sue.
a. * * * Nield, hereby fully, finally and unconditionally releases and forever discharges Goer from
and for any and all claims, liabilities, suits, dis-
- 9 crimination or other charges, personal injuries, demands, debts, liens, damages, costs, grievances, injuries, actions or rights of action of any nature whatsoever, known or unknown, liquidated or unliquidated,
absolute or contingent, in law or in equity, which
could have been filed with any federal, state, local or
private court, agency, arbitrator or any other entity,
based directly or indirectly upon Nield’s employment
with Goer * * *.
On March 26, 1998, Goer issued to Ms. Nield a check in the
amount of $2,644.50, which represented the $3,000 in wages, less
required payroll deductions, to which Ms. Nield was entitled
under paragraph 1.a. of the settlement agreement.
Pursuant to
the settlement agreement, Goer issued to Ms. Nield Form W-2, Wage
and Tax Statement, for 1998 showing the $3,000 in wages and the
payroll deductions.
On March 27, 1998, Goer issued to Ms. Nield a check in the
amount of $29,000, which represented the $29,000 in “non-wage
consideration for general compensatory damages for pain and
suffering” to which Ms. Nield was entitled under paragraph 1.b.
of the settlement agreement.
Pursuant to the settlement agree-
ment, Goer issued to Ms. Nield Form 1099-MISC, Miscellaneous
Income (Form 1099), for 1998 showing “Other income” of $29,000.
Petitioners filed a tax return (return) for their taxable
year 1998.
In that return, petitioners included in gross income
the $3,000 in wages, and excluded from gross income the $29,000
settlement amount at issue, that Ms. Nield received from Goer.
On June 26, 2001, respondent issued to petitioners a notice
- 10 of deficiency (notice) for 1998.
In that notice, respondent
determined that petitioners are not allowed to exclude from gross
income the settlement amount at issue that Ms. Nield received
from Goer.
Discussion
We must determine whether the settlement amount at issue is
excludable from petitioners’ gross income for 1998.3
Section 61(a) provides the following sweeping definition of
the term “gross income”:
“Except as otherwise provided in this
subtitle, gross income means all income from whatever source
derived”.
Not only is section 61(a) broad in its scope, Commis-
sioner v. Schleier, 515 U.S. 323, 328 (1995), exclusions from
gross income must be narrowly construed, id.; United States v.
Burke, 504 U.S. 229, 248 (1992).
Section 104(a)(2) on which petitioners rely provides that
gross income does not include
(2) 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;
*
*
*
*
*
*
*
For purposes of paragraph (2) [of section 104(a)],
emotional distress shall not be treated as a physical
3
The resolution of the issue presented does not depend on
who bears the burden of proof in this case.
- 11 injury or physical sickness. * * *
The regulations under section 104(a)(2) restate the statutory language of that section and further provide:
The term “damages received (whether by suit or agreement)” means an amount received (other than workmen’s
compensation) through prosecution of a legal suit or
action based upon tort or tort type rights, or through
a settlement agreement entered into in lieu of such
prosecution. [Sec. 1.104-1(c), Income Tax Regs.]
The Supreme Court summarized the requirements of section
104(a)(2) as follows:
In sum, the plain language of § 104(a)(2), the
text of the applicable regulation, and our decision in
Burke establish two independent requirements that a
taxpayer must meet before a recovery may be excluded
under § 104(a)(2). First, the taxpayer must demonstrate that the underlying cause of action giving rise
to the recovery is “based upon tort or tort type
rights”; and second, the taxpayer must show that the
damages were received “on account of personal injuries
or sickness.” * * * [Commissioner v. Schleier, supra
at 336-337.]
When the Supreme Court issued its opinion in Commissioner v.
Schleier, supra, section 104(a)(2), as in effect for the year at
issue in Schleier, required, inter alia, that, in order to be
excluded from gross income, an amount of damages had to be
received “on account of personal injuries or sickness.”
After
the Supreme Court issued its opinion in Schleier, Congress
amended (1996 amendment) section 104(a)(2), effective for amounts
received after August 20, 1996, by adding the requirement that,
- 12 in order to be excluded from gross income, any amounts received
must be on account of personal injuries that are physical or
sickness that is physical.
Small Business Job Protection Act of
1996, Pub. L. 104-188, sec. 1605, 110 Stat. 1755, 1838-1839.
The
1996 amendment does not otherwise change the requirements of
section 104(a)(2) or the analysis set forth in Commissioner v.
Schleier, supra; it merely imposes an additional requirement for
an amount to qualify for exclusion from gross income under that
section.
Each of the two independent requirements described in
Commissioner v. Schleier, supra, that a taxpayer must satisfy in
order to qualify an amount for exclusion from gross income under
section 104(a)(2) involves two inquiries that are similar.
In
the instant case, the dual inquiries under the first requirement
are whether Ms. Nield’s underlying claims were based on tort or
tort type rights and, if they were, whether such claims gave rise
to the payment by Goer of the settlement amount at issue.
The
dual inquiries under the second requirement are whether Ms.
Nield’s alleged injuries were personal and physical in nature
and, if so, whether the settlement amount at issue was received
on account of such personal physical injuries.
Respondent contends that the claims set forth in the complaint that Ms. Nield filed in the United States District Court
were not based on tort or tort type rights and that Ms. Nield did
- 13 not receive the settlement amount at issue on account of personal
physical injuries or physical sickness.
Petitioners disagree.
We turn to the parties’ dispute regarding whether the
settlement amount at issue was received on account of personal
physical injuries or physical sickness.
That is because our
findings and conclusions with respect to that dispute resolve the
issue presented to us under section 104(a)(2).
Where damages are received pursuant to a settlement agreement, such as is the case here, the nature of the claim that was
the actual basis for settlement controls whether such damages are
excludable under section 104(a)(2).
supra at 237.
factual.
United States v. Burke,
The determination of the nature of the claim is
Robinson v. Commissioner, 102 T.C. 116, 126 (1994),
affd. in part, revd. in part, and remanded on another issue 70
F.3d 34 (5th Cir. 1995); Seay v. Commissioner, 58 T.C. 32, 37
(1972).
Where there is a settlement agreement, that determina-
tion is usually made by reference to it.
See Knuckles v. Commis-
sioner, 349 F.2d 610, 613 (10th Cir. 1965), affg. T.C. Memo.
1964-33; Robinson v. Commissioner, supra.
If the settlement
agreement lacks express language stating what the settlement
amount was paid to settle, the intent of the payor is critical to
that determination.
Knuckles v. Commissioner, supra; see also
Agar v. Commissioner, 290 F.2d 283, 284 (2d Cir. 1961), affg. per
curiam T.C. Memo. 1960-21.
Although the belief of the payee is
- 14 relevant to that inquiry, the character of the settlement payment
hinges ultimately on the dominant reason of the payor in making
the payment.
Agar v. Commissioner, supra; Fono v. Commissioner,
79 T.C. 680, 696 (1982), affd. without published opinion 749 F.2d
37 (9th Cir. 1984).
In support of her position that she received the settlement
amount at issue on account of personal physical injuries, Ms.
Nield relies on:
(1) Her testimony, (2) the settlement agree-
ment, (3) her deposition taken in connection with the complaint
filed in the United States District Court, and (4) Ms. Nield’s
affidavits that comprised her State claim with the Utah Industrial Commission.
With respect to Ms. Nield’s self-serving testimony regarding
her contention that she received the settlement amount at issue
on account of personal physical injuries, we find that testimony
to be questionable in certain material respects.
Moreover, Ms.
Nield called no witnesses, such as the attorney who represented
her with respect to her claims against Goer, in order to corroborate her testimony.
Under the circumstances, we are not required
to, and we shall not, rely on Ms. Nield’s testimony regarding her
position that Goer paid her the $29,000 at issue on account of
her personal physical injuries.
Lerch v. Commissioner, 877 F.2d
624, 631-632 (7th Cir. 1989), affg. T.C. Memo. 1987-295; Geiger
v. Commissioner, 440 F.2d 688, 689-690 (9th Cir. 1971), affg. per
- 15 curiam T.C. Memo. 1969-159; Tokarski v. Commissioner, 87 T.C. 74,
77 (1986).
An example of Ms. Nield’s testimony that we find to be
questionable is her testimony that her supervisor at Goer (supervisor) bumped “into * * * [her] breast with his elbow” (alleged
elbowing incident) and that that alleged elbowing incident caused
her bruising.4
Except for Ms. Nield’s testimony at the trial in
the instant case, the record before us, including her State
claim, her complaint, and her deposition, shows that Ms. Nield
did not make any claims that she suffered bruising or other
physical injury as a result of her supervisor’s having bumped
into her breast with his elbow.
Moreover, Ms. Nield admitted at
trial, and the instant record establishes, that she did not seek
medical treatment for the alleged bruising from the alleged
elbowing incident, which she claimed for the first time during
her testimony in this case.5
Another example of Ms. Nield’s testimony that we find to be
questionable is her testimony that her supervisor once tackled
4
Ms. Nield did not testify at the trial in this case how
many times her supervisor allegedly brushed his elbow against her
breast. However, as discussed below, Ms. Nield testified during
her deposition that the alleged elbowing incident occurred only
once.
5
According to Ms. Nield’s testimony at the trial in the
instant case, she did not seek medical treatment as a result of
the elbowing incident “because it was just bruising that healed.
It was very sore.”
- 16 her in the parking lot at work (alleged tackling incident).6
Ms. Nield did not mention any such alleged incident in her State
claim, her complaint, or her deposition.
That was because,
according to Ms. Nield, she was afraid of her supervisor, and she
did not mention the alleged tackling incident until an alleged
arbitration of her claims against Goer, which she contends took
place after her deposition, when Ms. Nield asserts her supervisor
was in jail, and which she contends led to the settlement agreement.
Ms. Nield’s explanation about why she did not mention the
alleged tackling incident in her State claim, her complaint, or
her deposition is belied by the fact that Ms. Nield showed no
fear of her supervisor in advancing her various claims against
him and Goer in her State claim, her complaint, and her deposition.
A further illustration of Ms. Nield’s testimony that we find
to be questionable is her testimony that her complaint, which she
testified her attorney drafted on the basis of written information that she provided to him, did not allege any personal
physical injuries because she did not have the opportunity to
review the complaint before it was filed.
6
We find Ms. Nield’s
Unlike her claim that she suffered bruising as a result of
the alleged elbowing incident, Ms. Nield did not claim at the
trial in this case, and the instant record does not establish,
that the alleged tackling incident caused her any personal
physical injuries. Moreover, the record establishes that Ms.
Nield did not seek medical treatment for any alleged bruising
from the alleged tackling incident.
- 17 explanation to be incredible.
We do not believe that if Ms.
Nield had communicated to her attorney that she suffered personal
physical injuries related to her employment, her attorney would
have failed to allege any such injuries in the complaint, especially since Ms. Nield’s attorney filed the complaint on her
behalf in December 1996 after Congress amended section 104(a)(2)
to require that any amounts received after August 20, 1996, be
received on account of personal physical injuries or physical
sickness in order to be excludable from gross income.
See Small
Business Job Protection Act of 1996, Pub. L. 104-188, sec. 1605,
110 Stat. 1755, 1838-1839.7
Another example of Ms. Nield’s testimony that we find to be
questionable is her testimony that her attorney advised her that
the tax law did not require her to include the settlement amount
at issue in gross income.
That testimony is belied by the
settlement agreement which required Goer to issue Form 1099 to
7
Nowhere in the complaint is there an allegation that Ms.
Nield suffered any personal physical injuries. In fact, the only
use of the word “physical” in the complaint is an allegation that
Goer caused Ms. Nield “severe and grievous mental and emotional
harm which in turn resulted in severe physical consequences”.
That claim in Ms. Nield’s complaint was a claim for damages on
account of “severe and grievous mental and emotional harm”. Sec.
104(a) provides that emotional distress is not to be treated as a
physical injury or physical sickness for purposes of sec.
104(a)(2). In this connection, the legislative history of the
1996 amendment states: “It is intended that the term emotional
distress includes symptoms (e.g., insomnia, headaches, stomach
disorders) which may result from such emotional distress.” H.
Conf. Rept. 104-737, at 301 n.56 (1996), 1996-3 C.B. 741, 1041
n.56.
- 18 Ms. Nield reflecting the $29,000 settlement amount at issue.
With respect to the settlement agreement on which Ms. Nield
relies to support her position in this case, we have reviewed
that agreement and find that it does not support Ms. Nield’s
contention that she received the settlement amount at issue on
account of personal physical injuries.
supports a contrary finding.
The settlement agreement
Nowhere in the settlement agreement
were there any references to the alleged elbowing incident and
the alleged tackling incident that Ms. Nield contends caused her
physical injuries for which Goer compensated her by paying her
the settlement amount at issue.8
Moreover, as discussed above,
the settlement agreement required Goer to issue Form 1099 to Ms.
Nield showing the settlement amount at issue as “Other income”
for 1998, thereby reflecting the intention of Goer as well as Ms.
Nield, the parties to the settlement agreement, that Ms. Nield
was to report the settlement amount at issue as income for that
year.
With respect to Ms. Nield’s deposition on which she relies,
we have reviewed that deposition and find that it does not
support Ms. Nield’s position that she received the settlement
amount at issue on account of personal physical injuries.
8
The
There is not even any reference to “physical injuries”, and
only one reference to “personal injuries”, in the settlement
agreement. The reference to “personal injuries” is in a paragraph in the settlement agreement that appears to be boilerplate,
and we do not attribute any particular weight to it.
- 19 deposition supports a contrary finding.
Although Ms. Nield
raised the alleged elbowing incident in her deposition, nowhere
in the deposition did she allege that she suffered any physical
injuries as a result of that incident.9
With respect to Ms. Nield’s affidavits that comprise her
State claim with the Utah Industrial Commission on which she
relies, we have reviewed those affidavits and find that they do
not support her position that she received the settlement amount
at issue on account of personal physical injuries.
affidavits support a contrary finding.
Ms. Nield’s
Although Ms. Nield raised
the alleged elbowing incident in her State claim, nowhere in the
affidavits did she allege that she suffered any physical injuries
as a result of that incident.10
9
Ms. Nield claimed in her deposition that her supervisor
once brushed his elbow against her breast while he was walking
past her in an area where there was a limited amount of space for
two people. Based upon Ms. Nield’s recitation in the deposition
of how the alleged elbowing incident occurred, we believe that it
was highly unlikely that she suffered any physical injury from
that incident.
Nowhere in the deposition did Ms. Nield make any reference
to the alleged tackling incident or any physical injuries as a
result of that incident. However, we note that Ms. Nield testified at the trial in the instant case that she first mentioned
the alleged tackling incident and alleged physical injuries
resulting therefrom after her deposition took place.
10
Although her State claim could be read to assert that the
alleged elbowing incident happened at various times, she later
clarified in her deposition that only one alleged elbowing
incident took place.
(continued...)
- 20 Based upon our examination of the entire record before us,
we find that Ms. Nield’s claims against Goer did not include any
claims for personal physical injuries.
On that record, we
further find that Ms. Nield did not receive the settlement amount
at issue on account of personal physical injuries.
On the
instant record, we find that petitioners are not entitled to
exclude from gross income under section 104(a)(2) the settlement
amount at issue that Ms. Nield received from Goer.
We have considered all of the contentions and arguments of
the parties that are not discussed herein, and we find them to be
without merit, irrelevant, and/or moot.
To reflect the foregoing,
Decision will be entered
for respondent.
10
(...continued)
Nowhere in the State claim did Ms. Nield make any reference
to the alleged tackling incident or any physical injuries as a
result of that incident. However, we note that Ms. Nield testified at the trial in the instant case that she first mentioned
the alleged tackling incident and alleged physical injuries
resulting therefrom after her deposition took place. See supra
note 9.
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