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If you’ve dabbled in the tax law at any point since, oh…1913, you may accept best up on the actuality that the IRS is in the business of demanding accessions to wealth. In added words, if you go to bed at night richer than aback you woke up, Uncle Sam wants his cut. The Internal Revenue Code accomplishes this ambition via Breadth 61, which provides the accepted aphorism that gross assets “means all assets from whatever antecedent derived,” accent so across-the-board it would awning aggregate from your paycheck to the mob money you begin buried in your thrift-store piano to the $50 you won on the Falcons 11. In fact, Breadth 61 is so inclusive, aback applying the tax law, it’s safe to accept that unless some specific Code breadth allows you to exclude an accretion to abundance from your income, you’ve got to pay tax on it.



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WASHINGTON, DC – APRIL 15: The Internal Revenue Account (IRS) architecture stands on April 15, 2019 in … [ ] Washington, DC. April 15 is the borderline in the United States for association to book their assets tax returns. (Photo by Zach Gibson/Getty Images)

Section 104 is one such provision. It provides an exclusion from gross assets for “the bulk of any amercement accustomed (whether by clothing or acceding and whether as agglomeration sums or as alternate payments) on annual of personal concrete injuries or concrete sickness.” As we’ll altercate added absolutely below, the alike accent of Breadth 104(a) goes on to accommodate that affecting distress is not brash as a concrete abrasion or concrete sickness, and thus, payments to atone a aborigine for affecting ache are not tax-free.

But how do we differentiate amid claimed abrasion and affecting distress? For example: what is an bistro disorder? Is it an affecting issue, or a concrete ailment? I accept no idea, and abiding wouldn’t appetite to be the one answerable with authoritative the determination. 



With an breadth so grey, you ability anticipate that Breadth 104 would wind up the accountable of a lot of litigation, and you’d be right. But as you may accept guessed, with a accouterment so nuanced, there will consistently be new situations that Breadth 104 has never ahead contemplated. This accomplished Friday, one such actuality arrangement assured up the centermost of an IRS Clandestine Letter Ruling, and it’s an interesting, admitting sad, scenario.

But afore we dive into the PLR , let’s booty a attending at the accepted apparatus of Breadth 104, and again a few cases from the accomplished decade so we can lay some groundwork.

Section 104, In General 

If you sue somebody and either 1) win the suit, or 2) accommodate a settlement, because you’re richer than aback you woke up, your accolade is absolutely taxable beneath Breadth 61. As we ahead established, however, there is an barring beneath Breadth 104(a), which provides that assets does not accommodate any amercement accustomed on annual of “personal concrete injuries of concrete sickness.” The exclusion does not extend, however, to 1) castigating damages, or 2) payments attributable to ahead deducted medical expenses.

As mentioned earlier, the Code makes bright that for these purposes, “emotional distress” is not brash as a concrete abrasion or concrete sickness. Making affairs worse, the aldermanic history to Breadth 104 clarifies that concrete symptoms arising from emotional distress–like insomnia, headaches, or abdomen disorders–are additionally not brash claimed injuries or concrete sickness. This agency that if the genesis of your acknowledged claim is affecting distress, than the abounding bulk of advantage — alike if meant to accomplish you accomplished for consistent concrete affection — is taxable. On the added hand, as a assembly of case law has established, if the alpha of the affirmation is a concrete injury, than the abounding bulk of the payment — added than castigating amercement — will be excludable beneath Breadth 104, alike if allotment of the acquittal is meant to atone you for affecting ache arising from the concrete injury.

Thus, aback chargeless whether a taxpayer’s accolade or adjustment acquittal is excludable beneath Breadth 104, you’ve got to get to the basal of the aboriginal claim: what acquired the aborigine to sue in the aboriginal place? If it was an affecting injury, any accolade is taxable. If it was a concrete injury, provided the accolade or adjustment acceding supports that altercation — you accept a tax-free acquittal on your hands. Let’s see how the case law tackles the issue.

Barbato: the alpha of the affirmation

In Barbato v. Commissioner, T.C. Memo 2016-13, the aborigine formed for the U.S. Postal Service. In 1991, she was in a car blow while on the job, and afflicted her neck.

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Due to the consistent concrete limitations, Barbato took a altered role at the USPS; one that did not crave her to backpack mail, but rather to break at the station, acknowledgment calls, advice at the windows, and accord with customers.

A new appointment administrator was assassin in 2004, however, and things bound soured for Barbato. She was affected to acknowledgment to accustomed mail, which abandoned worsened her close pain. In addition, Barbato declared that the new administrator fabricated assignment activity boxy for her by analytical her assignment added carefully than added carriers and retaliating adjoin her aback she requested medical accommodations.

As a aftereffect of the adverse assignment environment, Barbato began to acquaintance astringent accent and affecting difficulties to go forth with her concrete pain.

Frustrated, Barbato filed clothing adjoin the USPS for acute adjoin her because of her above-mentioned close injury. In 2011, Barbato won her suit, and was awarded $70,000. In the decision, the adjudicator declared that “Barbato suffered from depression, anxiety, beddy-bye problems, and post-traumatic accent disorder, and that the altitude were either acquired by and/or affronted by the accomplishments which were begin to be discriminatory.”

Most chiefly from a tax perspective, the adjudicator additionally begin that Barbato’s concrete affliction was not caused by USPS’s abominable actions, but rather from the antecedent car accident.

In the year of receipt of the $70,000 payment, Barbato did not report the income on her tax return, arguing that it was excludable beneath Breadth 104.  Barbato believed that while the acquittal was made as an accolade from a clothing claiming affecting distress, the discrimination that was the centermost of the clothing would accept never arisen had she not suffered a antecedent concrete injury. Thus, in her opinion, the ultimate alpha of her affirmation was a physical injury, which acceptable the acquittal to be afar beneath Breadth 104.

The IRS, however, had added ideas. The Account argued that the acquittal was fabricated “on annual of” affecting distress, not concrete injury, while additionally relying on above-mentioned case history to altercate that abasement and all-overs are not concrete injuries. The Tax Cloister agreed on all counts, absolute that alike admitting the aboriginal adventure that led to the bigotry was a concrete injury, the absoluteness was that the activity abaft Barbato’s legal claim was affecting distress, which included her abasement and anxiety. Thus, while the alpha of the abrasion may accept been physical, the alpha of the affirmation that led to the accolade was affecting distress. As a result, the $70,000 represented taxable income.

Barbato does a abundant job of illustrating the all-important “genesis of the claim” assumption as it applies to Breadth 104. Let’s booty a attending at three added cases that reflect aloof how nuanced Breadth 104 can be.

Amos: you don’t accept to prove you were physically injured, you aloof accept to prove you got paid because you claimed to be injured.

Amos v. Commissioner, TC Memo 2003-329 is conceivably the best high-profile of all the Breadth 104 cases. Afterwards all, the declared concrete abrasion happened on alive television, aback above Chicago Bull Dennis Rodman kicked a amusement cameraman during a game.

The cameraman anon went to the hospital, accusatory of beam and aback pain, admitting no medical able could acquisition a absolute injury. Nevertheless, six canicule afterwards Rodman and Amos acclimatized for $200,000, with no allocation of the acquittal fabricated amid the taxpayer’s affirmation of concrete abrasion and a nondisclosure acceding that was allotment of the deal.

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The Tax Cloister assured that $120,000 of the acquittal was brash to atone the cameraman for his claims of concrete injury, acquainted that it doesn’t bulk if Amos was absolutely afflicted by Rodman; rather, all that mattered was that Rodman paid Amos, in part, because of the affirmation that Amos had been injured.

Parkinson: aback affecting ache leads to concrete INJURY — rather than abandoned a “symptom” — payments for the abrasion are tax-free beneath Breadth 104.

The courts accept assured on abounding occasions that claims for affecting ache may be tax chargeless if they appear out of concrete injury. To illustrate, if you get hit by a car and ache astringent injuries, but are additionally so emotionally traumatized that you debris to cantankerous the artery for the abutting four years, Breadth 104 would assure you from advantageous tax on any payments attributable to the affecting distress. It is additionally arid area that if you originally ache from affecting ache – as was the case in Barbato — any payments for concrete affection of that ache are not tax-free beneath Breadth 104. But what is a concrete symptom, and how do we differentiate one from a concrete injury?

In Parkinson v. Commissioner, T.C. Memo 2010 – 142, the aborigine formed 70 demanding hours a anniversary at a medical center, which eventually led to a affection attack. While recovering, he was consistently harangued by his co-workers to acknowledgment to work, which led to a SECOND affection attack. And alike then, while recouping from his additional near-death experience, the aforementioned co-workers alleged him while in the hospital and told him to get aback to the job. Parkinson wisely quit, and sued for “severe affecting distress” afore clearing for $350,000. Parkinson afar the acquittal from his taxable assets pursuant to Breadth 104.

The IRS argued that because Parkinson’s clothing mentioned abandoned the affecting ache acquired by his co-workers, the absolute acquittal was taxable. The Tax Court, however, disagreed. In accomplishing so, the cloister declared that while payments for concrete affection arising from affecting ache are not excludable beneath Breadth 104, a HEART ATTACK is added than a bald symptom; rather, it’s a concrete abrasion in its own right. As a result, the cloister assured that one-half of the $350,000 acquittal was excludable beneath Breadth 104 as advantage for the affection attack, with the added bisected taxable as acquittal for affecting distress.

Perez: you can’t exclude acquittal for concrete abrasion you accord to.

In Perez v. Commissioner, 144 T.C. 4, (2015), the aborigine apprenticed to advertise her eggs to women who struggled to accept on their own. During 2009, Perez went through two donation cycles and was paid a absolute of $20,000.

For anniversary donation, Perez entered into affairs that acutely declared that she was not affairs her eggs, intimating instead that she was actuality compensated for her concrete suffering:

“Donor Fee: Donor and Brash Parents will accede aloft a fee for Donor’s time, effort, inconvenience, pain, and adversity in altruistic her eggs. This fee is for Donor’s acceptable acceptance and abounding acquiescence with the donor egg procedure, not in barter for or acquirement of eggs and the abundance or affection of eggs retrieved will not affect the Donor Fee. The parties audibly accede and accede that the funds provided to the Donor shall not in any way aggregate acquittal to Donor for her eggs.”

Based on the accent of the contract, Perez believed that the $20,000 she accustomed in 2009 was to atone her for the concrete injuries she suffered as allotment of the egg donation process, and thus, fit aural the abuttals of Breadth 104 and was excludable from her taxable income. As a result, Perez did not address the $20,000 of taxable income, admitting the actuality that she was issued a Form 1099 in that amount.

The IRS disagreed, arguing that behindhand of the acknowledged language, the $20,000 Perez accustomed was in barter for services provided; in essence, while Perez may not accept been affairs her eggs, she was accouterment a account aback she went through the activity of altruistic her eggs.

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With some trepidation, the Tax Court took on the affair of whether the $20,000 Perez accustomed was in actuality taxable compensation, or if it represented a tax-free accretion of concrete damages.To that end, the cloister acclaimed article different about the taxpayer’s altercation compared to all antecedent Breadth 104 cases — in this instance, the injuries were both advancing and consensual; in fact, they were of the exact attributes that Perez was brash to apprehend aback she entered into her contract. Thus, Adjudicator Holmes concluded:

The abrasion actuality , as aching as it was to Perez, was exactly aural the ambit of the medical procedures to which she contractually consented. Twice. Had Donor Antecedent or the dispensary exceeded the ambit of Perez’s consent, Perez may accept a affirmation for damages. Her concrete affliction was a byproduct of assuming a account contract, and we acquisition that the payments were not fabricated to atone her for some exceptionable aggression adjoin her actual integrity but to atone her for casework rendered.

As a result, the amounts paid to Perez, and apparently to all approaching egg donors, represented taxable income. Now, let’s about-face our absorption to the afresh issued PLR, and booty a attending at what it has to add to our compassionate of Breadth 104.

PLR 20195004: Breadth 104 applies to amercement acquired afore bearing

Last Friday, the IRS appear a clandestine letter cardinal that, to the best of my knowledge, addresses a actuality arrangement never afore brash by Breadth 104. Unfortunately, a PLR is not a cloister case, so we don’t get an all-embracing appearance of how the Account activated the approved and authoritative accent — to say annihilation of the administrative antecedent — to the facts in the ruling; rather, all we get is a quick arbitrary of the law and the Service’s conclusion. Nevertheless, the aftereffect is an absorbing one.

In the ruling, the aborigine apprenticed with a dispensary to accommodate her with a acceptable bearding donor egg and accomplish an antecedent alteration via in vitro fertilization. The clinic, however, bootless to accomplish its obligation to analysis the donor egg or antecedent for assertive abiogenetic mutations.

The aborigine gave bearing to a adolescent from the built-in embryo, and anon after, it became bright that the adolescent suffered from an bearding abiogenetic activity the dispensary bootless to analysis for. Because of actuality built-in with the condition, the adolescent will ache from assorted physical, cognitive, and behavioral disabilities.

The aborigine filed a complaint adjoin the dispensary gluttonous amercement for the concrete injuries as able-bodied as the taxpayer’s own affecting distress. The aborigine and dispensary went on to achieve for an bearding agglomeration sum.

The IRS assured that the adjustment was brash to atone the aborigine for the concrete injuries suffered by her adolescent — as able-bodied as the affecting ache of both mother and adolescent — as a aftereffect of the clinic’s abortion to ascertain the abiogenetic condition.

Again, to my knowledge, this is the aboriginal time the IRS has continued the appliance of Breadth 104 to concrete injuries “caused” above-mentioned to the afflicted abandoned actuality born.

Even added fascinating, it appears to be the attenuate bearings — if not the abandoned one — area concrete abrasion was acquired by blank rather than apparent action. For example, a “physical injury” for purposes of Breadth 104 was ahead authentic in Clandestine Letter Cardinal 200041022 as “Direct exceptionable or alien concrete contacts consistent in appreciable actual harms such as bruises, cuts, abscess and bleeding are claimed concrete injuries beneath Breadth 104(a)(2).” Then, in Stadnyk v. Commissioner, T.C. Memo 2008-289, in captivation that apocryphal imprisonment, alone, was not a concrete injury, the tax cloister declared that for acquittal beneath Breadth 104 to be excludable, “something added than a concrete act is required– the being has to be afflicted as aftereffect of the concrete act.” Based on this history, for the IRS to acquiesce for advantage for concrete abrasion acquired by blank appears to be an amplification of the antecedent appliance of Breadth 104.

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The cessation is in no way incorrect; it’s just, well…unique. The aborigine is captivation the dispensary accountable for the constant concrete affliction and adversity her adolescent will endure, and admitting the actuality that the abuse was acquired by blank rather than any apparent activity of the clinic, the IRS appropriately assured that the payments are meant to atone the aborigine for that pain, behindhand of how — or aback — it was inflicted.

A few weeks ago, I explained to my alum academy chic that Breadth 104 is amid the added alluring in the Code, if for no added acumen that a never-before-seen actuality arrangement is not decidedly unique. Given the blurred band amid concrete affliction and affecting distress, and the continuing change of how things like abasement and all-overs are beheld by the medical community, the appliance of Breadth 104 will abide to advance as well.

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Last Updated: December 20th, 2019 by admin
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