First Published in
The Consumer Advocate

April/May/June 2004

© 2004 Dennis Brager, Esq.*

Many clients and some lawyers assume that damages received in a lawsuit are not taxable. As far as the tax consequences of rescission and debt cancellation are concerned, these questions have been relegated to the dark corners of the legal world where some say only tax lawyers dare tread. The purpose of this article is to take some (but not all) of the mystery out of these subjects.

Damages

The starting point is § 61 of the Internal Revenue Code1 which provides that gross income means all income from whatever source derived except amounts specifically excluded. Section 104(a)(2) is the portion of the law which provides the basic exclusion for some personal injury awards. It states that 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." Taxpayers must meet two independent requirements before they can exclude a recovery 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." See Comm'r v. Schleier, 515 U.S. 323 (1995). State law controls whether there is a tort-type injury. See, e.g., Brabson v. United States, 73 F.3d 1040, 1044 (10th Cir. 1996).

Read Tax Issues: Damages, Recission and Debt Cancellations as Client Income [PDF]

*Dennis Brager, Esq., is a State Bar Certified Tax Specialist in Los Angeles. A former IRS senior trial attorney, Mr. Brager now devotes his efforts exclusively to helping clients resolve their tax problems with the IRS and California State tax agencies. Services include negotiating Tax Debts, Tax Fraud Representation, Tax Litigation, Tax Audit and Appeals Representation,  Tax Preparer Penalty Mitigation, Payroll Tax Audits, and California Sales Tax Problems. He may be reached at 310-208-6200.