Taxation of Emotional Distress Damages - 1

Some of the most challenging federal income tax issues for settlement planners and their clients involve damages related to emotional distress and, even more specifically, damages compensating for stress-induced physical ailments.

This blog post summarizes federal legislative and regulatory tax history related to emotional distress damages and highlights recommendations for related legislative changes. In a subsequent blog post, S2KM will review articles by Jeremy Babener and Robert Wood analyzing recent related case law and offering their advice to settlement planning stakeholders.

Before enactment of the Small Business Job Protection Act of 1996, IRC section 104(a)(2) exempted from federal income tax payments received from settlements or judgments resulting from claims for personal injuries or sickness.

As the result of the 1996 amendment, however, Section 104(a)(2) now exempts from federal income tax “damages (other than punitive damages) received … on account of personal physical injuries or physical sickness.” Section 104(a) now also provides "emotional distress shall not be treated as a physical injury or physical sickness" for purposes of subsection (2). However, damages received on account of emotional distress that are attributable to a physical injury or physical sickness are excludable. The related legislative history provides that “emotional distress” includes “physical symptoms (e.g., insomnia, headaches, stomach disorders) which may result from such emotional distress.”

Since 1996, there have been many tax cases and many IRS rulings addressing damages for emotional distress. In a private letter ruling issued in 2000 (“the bruise ruling”), the IRS established “the observable bodily harms” standard in a case involving sexual assault and harassment in an employment context: “we believe that direct unwanted or uninvited physical contacts resulting in observable harms such as bruises, cuts, swelling and bleeding are personal physical injuries under section 104(a)(2).”

The United States Treasury did not issue new regulations for IRC section 104(a)(2), to address the 1996 amendments, until proposed regulations were published in 2009. A public hearing followed on February 23, 2010. On January 20, 2012, Treasury published final regulations for IRC section 104(a)(2) which were essentially the same as the 2009 proposed regulations.

Although the 2012 regulations confirm that damages for emotional distress attributable to a physical injury or physical sickness are excluded from income under section 104(a)(2), they do not provide any explanation to help define “physical” or “physical sickness”.

In addition to the tax rules outlined above, recipients of damages related to emotional distress, and their advisers, should also consider the following:

• IRS Form 1099 - When defendants settle cases involving taxable damages, they are required to complete an IRS Form 1099 and send copies to the claimant and the IRS. Most section 104(a)(2) cases, according to Robert Wood in his article "Tax-Free Physical Sickness Recoveries in 2010 and Beyond", have said a Form 1099 means the defendant/payer thought the damages were taxable. Conversely, Wood states, some courts have noted that the failure to issue a Form 1099 does not make a payment tax free.
• IRC Section 6661 - IRC Section 6661 establishes a 25% penalty for “substantial understatement of income tax.” However, according to case law cited in section 2.03 of “Structured Settlements and Periodic Payment Judgments”, (S2P2J) where a taxpayer reasonably relies on the advice of professionals in claiming a tax exclusion for emotional distress damages, the taxpayer may be able to escape application of an accuracy-related penalty - even though the exclusion was not accepted,
• Medical Care Exception - IRC section 104(a) excludes from gross income “damages not in excess of the amount paid for medical care … attributable to emotional distress.” In his article titled "Maximizing the Medical Care Exception to the Tax on Emotional Distress Damages", Jeremy Babener points out: "...when a client plans to receive damages on account of emotional distress, taking advantage of the medical care exception requires deliberate planning." Babener adds, however, "... while excluding damages based on past medical care expenses is relatively straightforward, excluding damages based on future medical care expenses is anything but."

During and/or concurrent with the February 23, 2010 public Treasury hearing related to the section 104 (a)(2) regulations, multiple persons recommended changes to the "physical" requirement added by the 1996 amendments including:

• The National Taxpayer Advocate - The National Taxpayer Advocate (NTA) addresses taxpayer considerations from inside the IRS. In a 2010 report to Congress, NTA representative Nina Olson recommended that section 104(a)(2) exempt non-physical damages, specifically emotional distress, mental anguish, and pain and suffering. To support her recommendation, Olson offered scientific data (that depression and other psychological illnesses included physical elements) and argued that existing tax law conflicts with public policy (the nondiscrimination requirement in the Mental Health Parity and Addiction Equity Act of 2008).
• John McCulloch - During the Treasury hearing, McCulloch proposed that damages received by victims of prolonged sexual abuse or false imprisonment should always be deemed “physical” for purposes of IRC section 104(a)(2) whether or not evidence is available to demonstrate physical injury.
• David Higgins - In a written submission for the Treasury public hearing, Higgins argued that the IRS’ definition of "physical" is inadequate: “direct unwanted or uninvited physical contacts resulting in observable bodily harm such as bruises, cuts, swelling, and bleeding.” Higgins recommended a broader definition, including damages for:
  • A doctor’s misdiagnosis resulting in death or serious injury from delayed or missing treatment;
  • Child neglect resulting in starvation or illness;
  • Rape committed under threat of bodily harm; and
  • Other situations where traditional physical injury torts occur without unwanted or uninvited physical contact or observable bodily harm.

For more detailed information about taxation of structured settlement payments, including emotional distress damages, see Chapter 2 of "Structured Settlements and Periodic Payment Judgments" (S2P2J).