This article analyzes the 1996 amendments to section 104(a)(2) of the Internal Revenue Code. The authors argue that while section 104(a)(2) was in need of remedy, the remedy chosen is both insupportable from the standpoint of tax policy and problematic in terms of administrability. Part II of the article traces the recent history of the statute’s judicial construction. Part III discusses the provisions of the 1996 amendments. Part IV demonstrates the impact of the 1996 amendments on dignitary torts and highlights policy and interpretational problems associated with the amended provision. The article concludes with a proposal for a better remedy.
J. Martin Burke & Michael K. Friel, Getting Physical: Excluding Injury Awards under the New Section 104(a)(2), 58 Mont. L. Rev. 167 (1997), available at http://scholarship.law.ufl.edu/facultypub/531