Forest v. IRS

[NOT FOR PUBLICATION]
[NOT FOR PUBLICATION]

United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit

No. 95-2180

LAUREL A. FOREST,

Petitioner,

v.

COMMISSIONER OF INTERNAL REVENUE,

Respondent.

ON APPEAL FROM THE DECISION OF

THE UNITED STATES TAX COURT

Before

Torruella, Chief Judge,

Campbell, Senior Circuit Judge,

and Lynch, Circuit Judge.

Joseph A. Kelly, with whom Carroll, Kelly & Murphy, Charles

J. Reilly, Reilly Law Associates, Inc. and Robert E. Hardman were

on brief for petitioner.
Kenneth W. Rosenberg, with whom Loretta C. Argrett,

Assistant Attorney General, Gary R. Allen, Bruce R. Ellisen and

Kevin M. Brown, Attorneys, Tax Division, Department of Justice,

were on brief for respondent.

December 18, 1996

TORRUELLA, Chief Judge. Petitioner-Appellant Laurel A.
TORRUELLA, Chief Judge.

Forest ("Taxpayer") appeals the income tax deficiency found by

the Commissioner of the Internal Revenue Service ("Commissioner")

and affirmed by the Tax Court. See Forest v. Commissioner, T.C.

Memo. 1995-377. In the spotlight is Section 104(a)(2) of the

Internal Revenue Code ("Code"), which provides that "any damages

received . . . on account of personal injuries or sickness" be

excluded from gross income.1 The Tax Court upheld the

Commissioner's determination that a portion of the $2,000,000

Taxpayer received in settlement of her personal injury claim

should be characterized as prejudgment interest and included in

gross income. Taxpayer now seeks review of that decision. For

the reasons stated below, we affirm. We do not reach, because

they have been waived, issues concerning whether prejudgment

interest in a settlement of a tort action is excludable as a

matter of federal law.

BACKGROUND
BACKGROUND

The pertinent facts, some of which have been stipulated

and incorporated in the Tax Court's findings, and others, which

we draw from the record, are not in dispute.

On March 9, 1982, Taxpayer fractured her back when she

slipped and fell inside her employer's walk-in refrigerator.

During 1985, she brought a products liability action against the

manufacturer of the refrigerator, Bohn Refrigeration Products

1 Unless otherwise indicated, all section references are to the
Internal Revenue Code in effect for 1992. Internal Revenue Code,
26 U.S.C. 1 et seq. (1988 & Supp. 1991).

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("Bohn"), in the Superior Court of Rhode Island. See Forest v.

Bohn Refrigeration Prods., Civil Action No. 85-0666 (R.I.

Superior Court, Providence, Sc.). Following a trial, the jury

returned a verdict on September 18, 1991, in favor of Taxpayer

for $2,600,000, less ten percent for contributory negligence, for

a total award of $2,340,000. In addition, pursuant to Rhode

Island General Laws section 9-21-10 (1985), statutory prejudgment

interest of twelve percent was added to the jury award. The

total judgment, including interest, was $5,007,600. The interest

constituted 53% of the total judgment.

On September 27, 1991, Bohn filed a motion for a new

trial. On October 15, following a hearing on the motion, the

Superior Court found that the jury's award "shocked the

conscience" and ordered a new trial on the issue of damages

unless Taxpayer agreed to a remittitur of $1,000,000 on or before

November 15, 1991. Two days later, Taxpayer consented to and

filed the $1,000,000 remittitur and the Superior Court entered a

judgment for Taxpayer against Bohn in the amount of $1,440,000

(i.e., $1,600,000 less ten percent contributory negligence), plus

interest and costs. Statutory prejudgment interest of twelve

percent was added to the judgment, this time in the amount of

$1,641,600, resulting in a total judgment of $3,081,600. Again,

the interest constituted 53% of the total judgment. Then, on

October 30, 1991, Bohn, not satisfied with the new result,

appealed the judgment to the Rhode Island Supreme Court.

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During the pendency of the appeal, Bohn settled the

case with Taxpayer on December 19, 1991. In return for a General

Release ("Release") by Taxpayer of all claims for personal

injuries, Bohn agreed to pay Taxpayer $2,000,000. The Release

did not provide for any allocation of the settlement proceeds

between damages and interest (or costs for that matter). During

the settlement negotiations, the parties neither discussed

whether any portion of the settlement proceeds should be

allocated to interest nor stated that none of the settlement

proceeds represented interest -- interest was simply not

discussed, neither during the negotiations nor in the Release.

On December 19, 1991, and in accordance with the terms

of the General Release, Aetna Casualty issued a check in the

amount of $2,000,000 to Taxpayer and her attorneys. On December

23, 1991, Bohn withdrew its appeal and the parties entered into a

Satisfaction Stipulation ("Stipulation") in the Superior Court

for the purpose of removing the case from the Superior Court's

docket. The Stipulation stated:

The judgment entered by this Court on
October 17, 1991[,] in the amount of
$1,440,000, plus interest and costs, has
been fully satisfied.

The parties did not consider the tax consequences of the

Stipulation. The Clerk of the Superior Court did not add

interest to the settlement of $2,000,000.

During 1992, Taxpayer's attorneys issued a check to

Taxpayer in the amount of $1,256,511.36, representing her share

of the settlement proceeds after deducting $668,489 in legal fees

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and costs. Taxpayer neither reported any portion of the

$2,000,000 settlement on her 1992 federal income tax return nor

claimed any deductions for legal fees and costs stemming from the

lawsuit. There was uncontroverted testimony that Taxpayer never

received a Form 1099 documenting interest income from Aetna

Casualty.

In its February 3, 1994, notice of deficiency, the

Commissioner determined a deficiency in Taxpayer's gross income

for the taxable year 1992 in the amount of $137,459. The

Commissioner determined that the deficiency was based upon

Taxpayer's failure to included in her 1992 gross income the

additional interest income from the settlement in the amount of

$560,000. This figure represented the difference between the

settlement proceeds ($2,000,000) and the damage award

($1,440,000). The Commissioner also determined that, pursuant to

Section 212(1) and subject to the 2% floor provided by Section

67, Taxpayer was entitled to miscellaneous itemized deductions in

the amount of $175,513 for attorneys' fees attributable to the

interest portion of the settlement proceeds.

Taxpayer petitioned the Tax Court for a redetermination

of the deficiency, arguing that an amount received in settlement

of a personal injury claim represented damages under Rhode Island

law and that the entire lump sum received was therefore

excludable from income under Section 104(a)(2). The Tax Court

sustained the Commissioner's determination, holding that a

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portion of the settlement proceeds represented prejudgment

interest and was not excludable from income:

[I]n the instant case, no express
allocations were made in the [G]eneral
[R]elease as to interest. Indeed, the
[G]eneral [R]elease does not even mention
interest. Because there were no express
allocations, we must look to other
evidence in the record to decide whether
any of the settlement proceeds are to be
allocated to interest.

After setting forth the chronology of events culminating with the

Stipulation, the Tax Court concluded that "[b]ased on the facts

and circumstances of the instant case, we hold that [Taxpayer]

has failed to establish that none of the settlement proceeds were

paid on account of prejudgment statutory interest."

The Tax Court then proceeded to decide what portion of

the $2,000,000 constitutes interest. The court determined that,

"[b]ased on our calculations, we find that the interest portion

of a $2,000,000 judgment accruing interest at a rate of 12% per

annum over 9.5 years is $1,065,420.56" (footnote omitted).

Nevertheless, in light of the Commissioner's concession that

Taxpayer is not liable for a deficiency in excess of that set

forth in the notice of deficiency, the Tax Court sustained the

Commissioner's determination in the notice of deficiency that

$560,000 of the settlement represents interest.

This appeal ensued. We have jurisdiction pursuant to

26 U.S.C. 7482(a)(1).

STANDARD OF REVIEW
STANDARD OF REVIEW

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We review the Tax Court's decision "in the same manner

and to the same extent as decisions of the district courts in

civil actions tried without a jury." 26 U.S.C. 7482(a).

Whether prejudgment interest is taxable is purely a question of

law and, therefore, subject to de novo review. See Brabson v.

United States, 73 F.3d 1040, 1042 (10th Cir. 1996) (Coffin, J.,

sitting by designation), petition for cert. filed, 64 U.S.L.W.

3709 (Apr. 10, 1996); Alexander v. IRS, 72 F.3d 938, 941 (1st

Cir. 1995) (collecting cases); see also First Nat'l Bank in

Albuquerque v. Commissioner, 921 F.2d 1081, 1086 (10th Cir. 1990)

(stating that de novo review is applied to tax court's findings

of law and of ultimate fact derived from applying legal

principles to subsidiary facts). The Tax Court's findings of

fact -- including its allocation of the settlement proceeds to

various elements of recovery -- is reviewable only for clear

error. Alexander, 72 F.3d at 941.

DISCUSSION
DISCUSSION

Neither party disputes that the claim underlying

Taxpayer's recovery was in the nature of a tort, or that Taxpayer

suffered injuries. What the parties vigorously dispute, and what

we must determine, is whether a portion of the lump sum received

in settlement of Taxpayer's personal injury claim constitutes

prejudgment interest and, if so, whether it is excludable as

"damages received . . . on account of personal injuries" within

the meaning of Section 104(a)(2).

I
I

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As always, we begin with the relevant Code provisions,

of which there are two. Section 61(a) provides that, "[e]xcept

as otherwise provided in this subtitle, gross income means all

income from whatever source derived." 26 U.S.C. 61(a); see 26

C.F.R. 1.104-1(c). As the "'sweeping scope' of this section

and its predecessors has been repeatedly emphasized by the

Supreme Court[,]" Brabson, 73 F.3d at 1042 (quoting Commissioner

v. Schleier, U.S. , 115 S. Ct. 2159, 2163 (1995)), "any

gain constitutes gross income unless the taxpayer demonstrates

that it falls within a specific exemption." Id. In turn,

Section 104(a)(2) -- the exclusion at issue here -- provides, in

relevant part, that gross income does not include "the amount of

any damages received (whether by suit or agreement and whether as

lump sums or as periodic payments) on account of personal

injuries or sickness." 26 U.S.C. 104(a)(2). As the Tenth

Circuit recently noted in Brabson, "[i]n interpreting the breadth

of 104(a)(2), we are guided by the corollary to 61(a)'s broad

construction, the 'default rule of statutory interpretation that

exclusions from income must be narrowly construed.'" Id.

(quoting Schleier, U.S. at , 115 S. Ct. at 2163); see also

Delaney v. Commissioner, 99 F.3d 20 (1st Cir. 1996).

II
II

Taxpayer makes two main contentions on appeal. First,

she claims that the settlement amount did not contain prejudgment

interest, but consisted solely of damages, excludable under

Section 104(a)(2). Second, she argues that prejudgment interest

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is considered "damages" and, therefore, any amount attributable

to prejudgment interest is excludable under Section 104(a)(2).

We address Taxpayer's arguments in turn.

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A. Allocation of Settlement Amount
A. Allocation of Settlement Amount

"It is settled law that taxpayers bear the burden of

proving that a tax deficiency assessment is erroneous." Delaney,

99 F.3d at 23. The Commissioner's "ruling has the support of a

presumption of correctness, and the [Taxpayer] has the burden of

proving it to be wrong." Welch v. Helvering, 290 U.S. 111, 115

(1933). "Ultimately, of course, a tax deficiency assessment is

subject to reversal if the taxpayer establishes by a

preponderance of the evidence that it was erroneous." Delaney,

99 F.3d at 23.

Taxpayer argues that the General Release's silence as

to interest is key to the proper determination of the allocation

of the settlement. While this argument may have a certain

appeal, see id. ("Since the settlement agreement language itself

suggests no differentiation between damages and prejudgment

interest, its silence plainly permits the interpretation that the

entire $250,000 constituted recompense for personal injury."), it

ignores the guiding principle that "the required inquiry

encompasses much more than the mere language subscribed to by the

parties, whether in the settlement agreement proper, the

stipulation of dismissal, or both, because under established

precedent the Tax Court must determine 'in lieu of what were

damages awarded' or paid." Id. at 23-24. In making this

determination, "the intent of the payor is a key determinant

whether a settlement recovery is excludable from gross income."

Id. at 24.

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Where, as here, that intent is not readily discernable,

the Tax Court looks to all facts and circumstances surrounding

the settlement, including "the details surrounding the litigation

in the underlying proceeding, the allegations contained in the

payee's complaint and amended complaint in the underlying

proceeding, and the arguments made in the underlying proceeding

by each party there." Robinson v. Commissioner, 102 T.C. 116

(1994), rev'd in part on other grounds, 70 F.3d 34 (5th Cir.

1995), cert. denied, 117 S. Ct. 83 (1996). Furthermore, as we

recently pointed out, and as Taxpayer recognizes, "a jury verdict

provides 'the best indication of the worth' of the taxpayers'

original tort claims." Delaney, 99 F.3d at 25 (quoting Robinson,

70 F.3d at 38).

Here, the Tax Court, recognizing the General Release's

silence as to allocation of the settlement and having little, if

any, evidence before it indicating the payor's intent, looked

beyond the language of the General Release to the facts and

circumstances surrounding that settlement. The Tax Court

considered evidence from Taxpayer's attorneys that the tax

consequences of the settlement were not contemplated during the

settlement negotiations. The Tax Court also recognized, however,

that the settlement was negotiated under the shadow of a

judgment2 that provided prejudgment interest, in the same

2 Taxpayer argues that the jury award was not a final verdict or
decision of the court under Rhode Island law. Taxpayer contends
that any debt was rendered unenforceable during the pendency of
the appeal and therefore there can be no finding of an interest
component based on the jury award. Even if Taxpayer correctly

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percentage of the total award both before and after the

remittitur.3 Regardless of which judgment is considered, the Tax

Court was not clearly erroneous in considering this circumstance

as part of the context in which the settlement was reached.

Additionally, the Stipulation, which stated that "[t]he

judgment . . . in the amount of $1,440,000, plus interest and

costs, has been fully satisfied," indicates that the settlement

reached reflected satisfaction of the jury award, as that award

had been apportioned by the Superior Court.

Moreover, while the available facts and circumstances

support the Tax Court's finding that the settlement amount

included prejudgment interest, nothing in those facts and

circumstances supports the opposite conclusion. At best, the

recites the law of Rhode Island, which we need not decide, we are
not looking to the judgment as the sole indication of the
existence of an interest component in this settlement. Instead,
we regard the Superior Court's judgment as part of the context in
which the parties negotiated the settlement.

3 Taxpayer contends that Bohn's appeal reinstated the original
jury award. In support of this contention, Taxpayer cites Dawes

v. McKenna, 215 A.2d 235 (R.I. 1965). Dawes, however, does not

hold that the original award is automatically reinstated; rather,
it allows only that the original award is open for review on
appeal. Id. at 325-26. Thus, it was not clearly erroneous for

the Tax Court to look to the award after remittitur as a
circumstance for consideration.

Furthermore, as the Tax Court appropriately recognized, even
if the original award were considered, there is no precedent for
the argument that a jury award larger than the settlement amount
necessitates a finding that the entire settlement is attributable
to compensation for personal injuries. In Robinson, 102 T.C.

116, the Tax Court found that a portion of the settlement
proceeds was attributable to interest even though the total
proceeds represented less than twenty percent of the original
damage award.

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General Release's silence regarding the allocation of the

settlement proceeds is ambiguous. In light of the other facts

and circumstances weighing in favor of the Tax Court's

conclusion, that ambiguity is certainly not enough to warrant a

finding that the Tax Court's findings are clearly erroneous.

Taxpayer contends that this case is similar to McShane

v. Commissioner, T.C. Memo 1987-151. Although the facts in both

cases involve a jury award, an appeal, and a settlement,

thereafter the two cases diverge. In McShane, the settlement

agreement provided for lump sum payments to the taxpayers. In a

recent case similar to the one at bar, this court reviewed the

McShane decision and found that the Tax Court's determination

that the settlement did not include interest was based on a

unique set of facts:

"First, the term 'without costs and
interest' had been included in the
settlement agreement at the insistence of
counsel for the principal defendant in
the tort action. Second, the intentions
of all parties to the underlying tort
action, as stated by their attorneys,
were most consistent with an intention to
pay no interest. Third, the Tax Court
credited the testimony of all counsel in
the tort action that the settlement
amounts for each plaintiff had been
arrived at by assessing the risks on
appeal and that the tax consequences had
never been discussed."

Delaney, 99 F.3d at 25.

The Tax Court in the instant case made a similarly

thorough inquiry into the relevant facts and circumstances. It

found that the settlement agreement was negotiated in the context

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of the jury award in the underlying case. It also heard evidence

from the Taxpayer's attorneys that neither tax consequences nor

interest were considered in reaching the settlement amount. It

heard no evidence as to the intent of the payor, Bohn. The court

found that, unlike the agreement in McShane, there was no express

statement in the Release indicating that the payment was not to

include prejudgment interest. Finally, the Stipulation contained

language indicating that the settlement satisfied the judgment

after remittitur, including interest and costs. We find that

these facts are sufficient to distinguish this case from McShane.

Thus, the Tax Court's conclusion is amply supported by

the facts and circumstances surrounding the settlement and

Taxpayer's arguments are insufficient to overcome her burden of

showing error in the Commissioner's determination or clear error

in the Tax Court's findings.

B. Whether prejudgment interest is excludable as
B. Whether prejudgment interest is excludable as
"damages" under Rhode Island law.
"damages" under Rhode Island law.

1. Kovacs v. Commissioner
1. Kovacs v. Commissioner

Taxpayer argues that the Code, legislative history and

prior case law do not support the Tax Court's holding in Kovacs

v. Commissioner, 100 T.C. 124 (1993), aff'd, 25 F.3d 1048

(6th Cir.), cert. denied, 115 S. Ct. 424 (1994), that prejudgment

interest on a personal injury claim is not excludable from income

under Section 104(a)(2). Her contention is that the Tax Court in

Kovacs improperly relied on precedent holding that post-judgment

interest is not excludable from interest income. She further

maintains that nothing in the legislative history of Section

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104(a)(2) supports a distinction between compensatory damages and

interest awarded on a claim of physical injury. Finally, relying

on the Periodic Payment Settlement Act of 1982,4 Taxpayer argues

that Congress, in amending the Code to allow for the exclusion of

period settlement payments -- which would include a component

representing the time value of money, or interest -- disregarded

any difference between lump sum and periodic payments and meant

for any interest income upon settlement to be excludable. As we

find nothing in the record below, including the testimony

presented and the initial and reply briefs of the parties, to

indicate that these arguments were raised before the Tax Court,

we decline Taxpayer's invitation to consider them for the first

time on appeal. See Delaney, 99 F.3d at 26 (determining that

taxpayer's failure to raise a similar argument before the Tax

Court amounted to waiver of that argument).

2. Treatment of Interest Under Rhode Island Law
2. Treatment of Interest Under Rhode Island Law

Taxpayer contends that whether an award is taxable is

determined by reference to the nature of the underlying claim.

She points out that the underlying claim here is one to redress

personal injury and, as such, the damages received thereon are

4 We note, in passing, that, to the extent Taxpayer's arguments
rely on this amendment, such reliance is misplaced. That Act
allows the excludability of the entire amount of periodic
payments in settlement of a claim. In so doing, the Act allows a
portion of "interest" to be excluded from gross income. This
Act, however, does not assist Taxpayer, as her settlement does
not fall within the provisions of that Act. We apply the
statutory language relevant to Taxpayer's particular claim. As
the Tax Court did in Kovacs v. Commissioner, 100 T.C. 124, 132-

33, any inconsistency between the two methods of settlement we
leave to Congress to remedy.

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excludable. Noting that the nature of the underlying claim is

determined under the relevant state law, Taxpayer argues that,

under Rhode Island law, statutorily imposed interest is

considered part of damages meant to compensate the injured party

and thus is excludable.

We recently visited the question of state law

characterization of interest. In Delaney, we looked to the

"thoughtful" approach utilized in Brabson, 73 F.3d 1040 (10th

Cir. 1996) (Coffin, J., sitting by designation):

"The Tenth Circuit . . . noted that
though state law governs the nature of
legal interests and rights created under
state law, the 'federal tax consequences
pertaining to such interests and rights
are solely a matter of federal law.' . .
. Accordingly, the Brabson panel first

ascertained the pertinent characteristics
of statutory prejudgment interest under
[the relevant state] law, but then looked
to federal law to determine its
excludability."

Delaney, 99 F.3d at 26.

Accordingly, we look first to Rhode Island law to

determine the legal nature of prejudgment interest. Taxpayer

relies on Factory Mutual Insurance Company of America v. Cooper,

262 A.2d 370 (R.I. 1970), for the proposition that interest is

part of damages. Taxpayer's reliance is misplaced. The Factory

Mutual court did not hold that prejudgment interest is a

component of damages under Rhode Island law. Instead, the court

there was determining the meaning of the word "damages" as it was

used in an insurance policy. See id. at 373.

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"[S]tatutory prejudgment interest is not an element of

damages in a personal injury action under Rhode Island law."

Delaney, 99 F.3d at 26 (citing DiMeo v. Philbin, 502 A.2d 825,

826 (R.I. 1986) (determining that prejudgment interest in

personal injury action is purely statutory and therefore not an

element of damages)).

Having found that, under Rhode Island law, prejudgment

interest is not considered damages, we next look to federal law

to determine the nature of prejudgment interest for federal tax

purposes. See id.

3. Prejudgment Interest Under Federal Law.
3. Prejudgment Interest Under Federal Law.

The Supreme Court recently explained the two

requirements for exclusion under Section 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.'"

Commissioner v. Schleier, U.S. , 115 S. Ct. 2159, 2167

(1995). The cause of action underlying Taxpayer's settlement was

assuredly one based upon tort or tort type rights. We look,

then, to determine whether Taxpayer has met the second prong of

excludability.

Taxpayer appears to argue that the purpose of the

statutorily-imposed prejudgment interest is to make her whole, as

though the injury had never occurred. This argument rests on two

statements we glean from her brief to the effect that the

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interest imposed is meant to compensate the injured party for a

delay in the payment. Though this argument may have some merit,

we reserve the question for another day. Because Taxpayer failed

to raise the contention that the statutorily-imposed prejudgment

interest is somehow related to her personal injury before the Tax

Court, she has not preserved the argument for appeal. We find

that argument waived. See Mulero-Rodr guez v. Ponte, Inc., 98

F.3d 670, 679 (1st Cir. 1996) (noting that appellants' silence as

to a particular legal argument before the trial court amounted to

waiver of that issue on appeal); see also National Ass'n of

Social Workers v. Harwood, 69 F.3d 622, 627-28 (1st Cir. 1995)

(setting forth the strenuous guidelines for finding an exception

to this waiver rule).

In addition, we note that Taxpayer's failure to

adequately present any "make whole" argument in her brief on

appeal also supports a finding that this issue has been waived.

We have previously recognized that "a litigant has an obligation

'to spell out its arguments squarely and distinctly' . . . or

else forever hold its peace." See Rivera-G mez v. Castro, 843

F.2d 631, 634-35 (quoting Paterson-Leitch Co. v. Massachusetts

Municipal Wholesale Elec. Co., 840 F.2d 985, 990 (1st Cir.

1988)). Here, Taxpayer has failed to put forth a coherent

argument, beyond vague reference, regarding any relationship an

award of statutorily-imposed interest might have to her personal

injuries. "It is not enough merely to mention a possible

argument in the most skeletal way, leaving the court to do

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counsel's work, create the ossature for the argument, and put

flesh on its bones." United States v. Zannino, 895 F.2d 1, 17

(1st Cir.), cert. denied, 494 U.S. 1082 (1990); see also In re

Three Additional Appeals Arising Out of the San Juan Dupont Plaza

Hotel Fire Litigation, 93 F.3d 1, 2 n.2 (1st Cir. 1996) (noting

that "it is beyond peradventure that we will not address an issue

when the party raising it fails to treat it seriously"). We will

not "abandon the settled appellate rule that issues adverted to

in a perfunctory manner, unaccompanied by some effort at

developed argumentation, are deemed waived." Zannino, 895 F.2d

at 17. Because we refuse to guess at Taxpayer's argument, any

"make-whole" argument she might have made is waived.

We decline to pass on this question where the court

below was not presented with either a legal argument or a factual

predicate on which to make a reasoned analysis of any

compensatory component of prejudgment interest and where we do

not have the benefit of a properly briefed argument.

CONCLUSION
CONCLUSION

For the foregoing reasons, the decision below is

affirmed.
affirmed

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