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Saturday, January 07, 2012


The starting point for most damages recovered by litigants is that the damages are gross income. The hunt then is on for some exception to gross income treatment. A recent private letter ruling illustrates one favorable path, if it fits the facts.

Here, the taxpayer recovered damages from a defendant that had interfered with the taxpayer’s agreement to buy assets of a unit investment trust. The effect was the taxpayer had to pay more for the acquired property than if there had been no interference.

Instead of treating the damages as an item of gross income, the ruling allows the taxpayer to treat it as a nontaxable return of capital in the acquired assets. Thus, the effect is no income tax on the proceeds received, to the extent they do not exceed the adjusted basis of the taxpayer in the subject assets. Should the damages exceed the total basis, then income to that extent would occur. Also, the adjusted basis of the taxpayer in the assets would be reduced for the damages received. This will increase the likelihood of future gains from the property if and when sold.

The key here was an injury to property. If a recovery compensates a taxpayer for injury or loss to the taxpayer's property, it is considered a restoration of capital to the extent of the taxpayer's capital interest therein. Rev.Proc. 67-33, 1967-2 CB 659. Therefore, a review of the facts in recovery situations to determine if there is a property interest that was damaged and compensated is a worthwhile endeavor.

PLR 201152010, December 30, 2011

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