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What. A. Year.

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When tax geeks arose from their coma on January 1, 2018, we were greeted by a aberrant and alien world. Gone were claimed exemptions, Breadth 199, and 50% benefit depreciation. In their abode were a angled accepted deduction, Breadth 199A, and 100% benefit depreciation. These changes, in accretion to endless others, were the end aftereffect of a cyclone aldermanic activity that overhauled our admired Internal Revenue Code in a mere seven weeks, an act of Aldermanic airs that tax professionals will rue for years to come.

As a aftereffect of this across-the-board new legislation, anytime aback the agenda angry to 2018, all of our absorption has been focused on accepting up to acceleration on the new law. But while we’ve been up to the artificial waistline of our pleated Dockers in Opportunity Zones and absorption limitations, the aeon anniversary of tax law that existed prior to the Tax Cuts and Jobs Act has been absolutely ignored. Thousands of accoutrement survived the contempo annular of reform, and throughout 2018, abounding of those accoutrement acquire begin their way into the Tax Court, breadth disputes amid taxpayers and the IRS acquire concluded in all-important administrative precedent.

But anyone who claims to acquire kept up with the Tax Cloister in 2018 is apace lying. Save for the casual Wesley Snipes appearance, best of the cases absitively by the cloister in 2018 acquire gone abundantly unnoticed, absent to the bags of proposed regulations that acquire been appear on the new law.

And that, absolutely frankly, is unacceptable. We can’t be like Homer, who already lamented that every time he abstruse article new, it pushed some old actuality out of his brain. We’ve got to do it all: get a butt on the new law, while continuing to adept the old. Afterwards all, Adjudicator Holmes ain’t offering up that chat comedy for no one to apprehend it.

So let’s do this. Over the abutting twelve weeks, lets anatomize one Tax Cloister case from each month of 2018. Keep in mind, these cases are not necessarily the most important decisions of anniversary month, but rather the ones that I acquire to be best advantageous to your apprehensive accomplished tax pro. If you disagree, address your own abuse list.

For January’s case, we covered Conner v. Commissioner, T.C. Memo 2018-6, a case acclamation whether the auction of absolute acreage generated accustomed assets or basic gain. 

For February, check out Meruelo v. Commissioner, TC Memo 2018-16, in which we discussed the abounding agency shareholders in an S association spiral up aggravating to access “debt basis.” 

For March, we went through Simonsen v. Commissioner, 150 T.C. 8, and apparent that the tax analysis of abbreviate sales and foreclosures is annihilation but straightforward.

In April, we looked at Povolny Group, Inc. v. Commissioner, T.C. Memo 2018-37, and apparent that sometimes a accommodation isn’t a loan.

For May, we exhausted up Barker v. Commissioner, T.C. Memo 2018-67.

In June, it was  Alterman v. Commissioner, TC Memo 2018-83, which took a attending at the tax analysis of marijuana facilities.

For July, we covered Martin v. Commissioner, T.C. Memo 2019-109, and abstruse who qualifies as a absolute acreage professional, or to put it added accurately, who doesn’t. 

It’s time to move on to August and Lakner v. Commissioner, T.C. Memo 2018-127, a case that will acquiesce us to awning one of the added absorbing — and nuanced — areas of the Code: Breadth 104 and the tax analysis of acknowledged settlements and judgments.

What Makes It Special 

The IRS is in the business of demanding accessions to wealth. In added words, if you deathwatch up one morning richer than the day before, Uncle Sam wants his cut. That’s why Breadth 61 provides the accepted aphorism that gross assets “means all assets from whatever antecedent derived.” So unless some specific Code breadth allows you to exclude an accretion to abundance from your income, you’ve got to pay tax on it.

Section 104 is one such section. 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 anniversary of claimed concrete injuries or concrete sickness”. The alike accent of Breadth 104(a) provides that emotional ache shall not be advised as a concrete abrasion or concrete sickness.

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But what is claimed abrasion or concrete sickness, and how do we differentiate those things from affecting distress? For example: what is an bistro disorder? Is it an affecting issue, or a concrete ailment? I acquire no idea, and would not appetite to be the one answerable with authoritative the determination. 

With an breadth so grey,  you ability anticipate that Breadth 104 would wind up in the Tax Court a lot. And you’d be right. Let’s booty a attending at a accommodation from August that illustrates how the IRS and the Tax Cloister access such a catchy area. 

Facts In Lakner 

George Lakner had a connected career in the U.S. Army, during which he was stationed at assorted aggressive installations in the U.S. and overseas. From 1999-2001, Lakner was active by the VA Medical Center. During that time, he aloft apropos that veterans with brainy bloom problems were not accepting able care. In 2001, he was concluded from the VA.

In 2002, Lakner filed a Complaint of Employment Discrimination, alleging that he had been the victim of bigotry on the base of religion, civic origin, age and/or disability. In the alternative, he declared that he had been accursed for pointing out the VA’s blooper in care.

In 2003, Lakner was deployed to Bosnia, breadth he was acutely afflicted by a roadside bomb. While recovering, he was alien to Kosovo, breadth he declared he was bedfast for several months in aggressive installations because the Army believed his accepting been concluded by the VA rendered his connected aggressive annual unlawful.

In 2010, a audition was held, and Lakner testified that he had filed his complaint because he believed the VA had discriminated adjoin him for actuality Jewish. Soon after, he was awarded a adjustment of $328,000, apery pecuniary and nonpecuniary damages, attorney’s fees, and accrued anniversary leave.

Lakner did not board the adjustment bulk on his 2010 tax return, demography the position that it was tax-free beneath Breadth 104, and would afterwards altercate that at atomic allotment of the acquittal was attributable to the abrasion he suffered in Bosnia. The IRS adapted the return, arguing that the $328,000 adjustment acquittal represented assets beneath Breadth 61, and was not paid on anniversary of concrete abrasion or claimed harm. Let’s booty a added attending at Breadth 104 and bulk out who was right.

Section 104, In General 

If you sue somebody and either 1) win the suit, or 2) board a settlement, 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 board any amercement (other than castigating damages) accustomed on anniversary of “personal concrete injuries of concrete sickness.” 

As mentioned earlier, the Code makes bright that for these purposes, “emotional distress” is not advised as a concrete abrasion or concrete sickness. Making affairs worse, the aldermanic history to Breadth 104 clarifies that concrete affection arising from affecting distress–like insomnia, headaches, or abdomen disorders–are additionally not advised claimed injuries or concrete sickness. Administrative antecedent added clarifies that abasement and all-overs are non-physical injuries, a bolus that’s rather absinthian to absorb if you’ve anytime suffered from either. 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, 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 free 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 acquire a tax-free acquittal on your hands.

In practice, however, this can generally be confusing. For example, as we abstruse a few years ago in Barbato, the genesis of the injury may be altered than the genesis of the claim.


Debra Barbato formed for the U.S. Postal Service. In 1991, she was in a car blow while on the job, and afflicted her neck.

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 breach at the station, acknowledgment calls, admonition at the windows, and accord with customers.

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A new appointment administrator was assassin in 2004, however, and things bound soured for Barbato. She was affected to acknowledgment to accustomed mail, which alone 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 carrier 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 acquire never arisen had she not suffered a antecedent concrete injury. Thus, 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 Annual argued that the acquittal was fabricated “on anniversary of” affecting distress, not concrete injury. The Tax Cloister agreed, 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 acknowledged affirmation was affecting distress. Thus, while the alpha of the abrasion may acquire 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. But how do courts accomplish the acumen amid a concrete or affecting injury? Let’s booty a attending at two added adequately contempo cases, in which we apprentice that neither all-overs nor abasement accomplish the cut as “physical” ailments.

Smith and Blackwood

If you’ve anytime accomplished an all-overs attack, you apperceive that it sure feels like your anatomy is experiencing a concrete trauma. The night my aboriginal kid was born, anon afterwards my wife got her epidural there was a abeyance in the activity and she fell comatose for a few hours. I fell comatose as well, and aback we both woke up, it was GO TIME. There was article about activity from aught to sixty that was too abundant for my aerial afraid arrangement to handle, and I had a absolute all-overs attack. I started to sweat, my chest bedeviled up, and I absent all affinity of balance. Aback the assistant came aback in the room, admitting the actuality that my wife was aggravating to advance out a seven batter tax exemption,  the nurse’s actual affair was whether I was okay.

The advance eventually passed, but the chest affliction ashore about for days. In fact, afore we larboard the hospital, the nurses got so annoyed of my accusatory about the afflictive feeling that they ordered an EKG. What can I say, I’m all man.

The EKG was fine, but I had abstruse a acrid assignment about what all-overs can do the body, and the countless of concrete affection in which it can manifest.

Which makes it all the added difficult to acquire that the IRS doesn’t acquire than all-overs is a concrete malady, but all the affidavit you charge that this is the case can be begin in f Smith v. Commissioner, T.C. Summary Opinion 2014-93, acclimatized in 2014.

In Smith, the aborigine was a aide at a seafood restaurant who was diagnosed with absorption arrears ataxia and aloft depressive disorder. As allotment of his treatment, he was assigned analeptic medications. Actuality a slight fellow, his doctor was anxious that he would become alarmingly angular while demography the medication unless he was able to eat constantly. To board this need, for a abrupt aeon the taxpayer’s employer accustomed him to breach from the accepted rules for on-shift dining and eat whenever he acquainted the need. The employer bound backtracked, however, and began greatly limiting the taxpayer’s adaptability to eat while working.

This didn’t assignment out able-bodied for either party, and anon after, the aborigine was fired. He bound filed clothing adjoin his aloft employer, alleging that the employer discriminated adjoin him because of his disability, and approved amercement for the affecting distress, anxiety, and abasement acquired by his sacking.

The taxpayer eventually acclimatized for $35,000. The aboriginal $5,000 of the adjustment was appropriate as absent accomplishment — which is consistently taxable as advantage and included on a W-2–but the actual $30,000 was declared in the adjustment agreement as actuality fabricated for “pain and adversity and affecting distress.”

The aborigine afar the $30,000 of adjustment accretion from his assets beneath the acceptance that “pain and suffering” was alike with personal abrasion or concrete sickness, and was appropriately excludable beneath Breadth 104.

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The IRS disagreed, arguing that the $30,000 was paid to atone the taxpayer  for the abasement and all-overs he suffered afterwards actuality terminated, and appropriately was not fabricated on anniversary of claimed abrasion or concrete sickness.

In balustrade with the IRS, the Tax Cloister began breadth it begins every Section 104 analysis: at the agent of the claim. In the actual case, the clothing declared that the aborigine suffered “severe affecting distress, anxiety, and depression” afterwards actuality terminated. Harsh as it may seem, as we discussed above, these altitude are not advised as claimed injuries beneath the acceptation of Section 104. As a result, no allocation of the adjustment payment was fabricated to atone the aborigine for claimed abrasion or concrete harm, and the absolute $35,000 was taxable beneath Breadth 61.

A agnate accommodation was accomplished in Blackwood.

Julie Blackwood, who had connected suffered from depression, was unceremoniously canned from her job;  the capacity of the battlefront are unimportant. Afterwards her termination, Blackwood’s abasement relapsed, causing her to ache affection such as insomnia, sleeping too much, migraines, nausea, vomiting, weight gain, acne, and affliction in her back, accept and neck. Blackwood sued her aloft employer, and was eventually awarded a $100,000 settlement. She was issued a Form 1099-MISC, but on the admonition of counsel excluded the $100,000 from her tax acknowledgment as a nontaxable acquittal pursuant to Breadth 104.

Blackwood argued that the deepening of her abasement affection as a aftereffect of her abortion was a concrete abrasion or concrete sickness.  The IRS beheld it differently; arguing that the abasement affection Blackwood  suffered were appropriately classified as affecting ache beneath the alike accent of Breadth 104(a).

The Tax Cloister ultimately sided with the IRS, accordant that while Blackwood’s depression manifested itself in concrete symptom, the basis account of the activity adjoin her aloft employer was not claimed abrasion or concrete harm, but rather affecting distress. A analysis of the aldermanic letters led the cloister to its decision:

The aldermanic history of breadth 104(a) states it “is advised that the term emotional ache includes affection (e.g., insomnia, headaches, stomach disorders) which may aftereffect from such affecting distress.” Congress’ advertisement of concrete affection of affecting ache is affirmation of Congress’ absorbed to authorize that not every concrete affirmation will authorize as a concrete abrasion or concrete affection beneath breadth 104(a)(2). Therefore, the actuality that a taxpayer suffers concrete affection from affecting ache does not automatically authorize the aborigine for an exclusion from gross assets beneath breadth 104(a)(2). …Petitioners did not accommodate affirmation that petitioner’s concrete affection of abasement were astringent abundant to acceleration to the akin of a concrete abrasion or concrete sickness.

Back to Lakner 

As a reminder, Lakner accustomed a adjustment afterwards suing his aloft employer for discrimination, alleging that that he had been accursed either because he was Jewish, or because he had absolute the blare on what he declared were arbitrary practices conducted by his employer. Lakner’s complaint fabricated no acknowledgment of a concrete injury. But that’s not to say his history was not afterwards concrete pain; remember, Lakner had been acutely afflicted by a roadside bomb in Bosnia afterwards his battlefront from the VA.

So actuality we acquire addition case, like Barbato, with both a concrete and affecting component. But clashing in Barbato, wherein the aborigine suffered a concrete abrasion afore constant consecutive affecting ache (and remember, she absent anyway!), in Lakner, the concrete abrasion occurred after the taxpayer’s termination. In fact, the abrasion had occurred after Lakner had filed his suit! 

This rather adverse actuality didn’t stop Lakner from testifying that the adjustment he accustomed had “linkage” to the concrete injury, arguing that his concrete affliction consistent from the bombing was affronted while bedfast in Kosovo, an activity that was alone all-important because he had been absolved by the VA. Thus, he argued, allotment of the adjustment was meant to antidote the concrete affliction that was fabricated worse by altitude consistent from his firing.

But as we’ve abstruse by now, repercussions occurring afterwards a acknowledged affirmation are irrelevant. All that affairs is this: what abuse did the aborigine adduce in the aboriginal claim, and what was the aboriginal abuse actuality alleged? In this case, the Tax Court’s accommodation was a simple one: the affirmation fabricated no acknowledgment of a concrete injury, so the adjustment accretion could not possibly acquire advised to atone Lakner for claimed harm. As a result, he was not acceptable to exclude the accretion beneath Breadth 104.


By its actual nature, Breadth 104 will always be a common bedfellow in the Tax Court. The blurred band amid claimed abrasion and affecting ache are acutely difficult to decipher, and the stakes are aerial with attention to taxable income.

As an aside, if you would like to take inl conceivably the best able (albeit unsuccessful) Breadth 104 claim, I awful acclaim you accord this a read.

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